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Hadley, J. The respondent brought this action against appellant to procure an injunction against an alleged threatened interference with the use of a stream for the floating of shingle bolts. The stream is known as the West Dork of Woods creek. It commences at the foot of Lake Boesiger, in Snohomish county, and flows therefrom in a southwesterly direction, passing through the lands of both appellant and respondent Bespondent owns an extensive body of timber lands adjacent to' the lake and stream, and owns the lands upon both sides of the stream at its source. Appellant’s lands lie below those of respondent. The respondent has constructed, and has heretofore operated, a dam at the lower end of the lake, for the purpose of storing the waters within the lake to be used in flooding the stream in order to accelerate the movement of shingle bolts. The complaint charges that appellant threat ens, by obstruction, to prevent respondent from driving its bolts through the stream where it crosses appellant’s land. It is alleged that the stream is navigable or floatable for shingle bolts, and that respondent has now about three thousand cords of bolts stored in the lake ready for movement, which it will be unable to move unless appellant is restrained. The answer denies that the stream is navigable, and alleges that, by reason of the storing of the water in the lake> the flow of the stream is at times entirely stopped, and that at other times respondent suddenly and without warning releases the stored water, and that it runs down and overflows the lands of appellant adjacent to the stream, Washes away the soil, and destroys appellant’s roads and landings constructed for the movement of his own shingle bolts; that appellant is engaged in removing the cedar timber from his own land, and that by reason of respondent’s obstruction of the natural flow of the water, it is impossible for him to run his shingle bolts down said stream. The answer prays for damages, and for an injunction perpetually restraining respondent from interfering with the natural flow of the water in the creek, and from flooding appellant’s lands. The cause was tried before the court without a jury. "Findings of facts and conclusions of law were entered, and the decree provides that appellant shall be perpetually enjoined from in any manner obstructing or interfering with the navigation of said stream, or the driving of respondent’s shingle bolts across the lands of appellant. It is further provided that appellant shall be restrained from in any manner interfering with or preventing respondent’s employes from going upon the banks of said stream for the purpose, only, of breaking jams of bolts which may occur, so long as the going upon said banks does no injury to appellant or bis land. This appeal is from that decree. The first alleged error is that the court permitted any testimony to be introduced in support of the complaint. This contention is based upon the theory that the complaint shows that the stream in question is not navigable or floatable for shingle bolts, in its natural condition. It is expressly averred that the stream is navigable for said purpose, but it is argued that other allegations have the effect to negative such fact. The following averment is pointed out as destroying the force of the positive allegation as to navigability: “That it (respondent) has at great expense constructed-a dam across the foot of Lake Roesiger for the purpose of storing water, thereby furnishing a sufficient supply of water in the aforesaid stream to conveniently and rapidly float shingle bolts and other timber products down the same to the mill of this plaintiff.” We think the conclusion which appellant draws does not necessarily follow when the two averments are taken together. The quoted allegation amounts to no more than the statement that respondent’s own convenience, in the moving of its shingle bolts, is better served by the storing of the water and the operation of the dam. But it does not say that the stream is not floatable in its natural state. The court did not err in overruling the objection to the introduction of any testimony upon the above mentioned ground. A further point raised under the objection to the introduction of any testimony is that an attempt is made in the complaint to plead an estoppel against appellant, but that the allegations are insufficient to charge an estoppel.. The complaint avers that respondent, at its own expense, cleared the said stream of obstructions across appellant’s land, in order to facilitate the movement of shingle bolts; that ap pellant acquiesced therein,- actually assisted in the clearing out of such obstructions, thereafter used the benefits accruing therefrom, and also the flow of water as furnished by the dam and improvements constructed by respondent at the lake. We agree with appellant’s contention that the facts stated are not sufficient to estop him from claiming now that respondent is interfering with the natural flow of the water. The mere fact that he made no objection to clearing the bed of the stream from obstructions, or that he may even have assisted therein, does not necessarily establish that he consented that the floatage of the stream should be conducted in any other manner than as provided by the natural flow of the water. The further fact that he may have used the water, as it was sent down the stream by the occasional opening of the dam, during a period of about two years, does not establish his acquiescence in the continued interruption of the natural flow of the water, and amounts to no more than a mere license for a temporary interruption, revocable at will. Such facts do not contain the essential elements of estoppel. Rigney v. Tacoma Light & W. Co., 9 Wash. 576, 38 Pac. 147, 26 L. R A. 425; Hathaway v. Yakima Water etc. Co., 14 Wash. 469, 44 Pac. 896, 53 Am. St. 847. It is true, therefore, that appellant is not estopped to assert that the complaint shows that respondent, through the operation of its dam, is interfering with the natural flow of the water. But in view of the allegation that the stream is navigable, it is also true that appellant has no right to interfere with its navigation by respondent, as it is alleged he threatens to do, and it was not error, under the averments of the complaint, to admit evidence upon that subject. The court found that, with the removal of the artificial obstructions, the stream is capable of navigation by shingle bolts after heavy rains and during freshets, which occur with, periodic regularity in the spring and fall of each year, .and that it is so navigable without the storage of the water in the lake, and without the aid of said dam. It is assigned that the court erred in so finding. We think not, under the evidence. There was sufficient evidence to sustain the finding that the stream, in its natural state, can be practicably used for the floatage of shingle bolts to market, at the times and seasons specified in the court’s findings., Such makes it a navigable stream within the holding of this court in Watkins v. Dorris, 24 Wash. 636, 64 Pac. 840, 54 L. R. A. 199. In that case the trial court found Elochoman creek to be an unmeandered stream, and that it can, during annually recurring freshets, be used profitably for the floating of sawlogs to market. This court held it to be navigable, and a highway for that purpose. Woods creek is much smaller than Elochoman creek, is also unmeandered, and is doubtless non-navigable for sawlogs. But the evidence shows that it has sufficient capacity, in its natural state, during annually recurring periods, to float shingle bolts, and while a single shingle bolt contains but a small amount of timber, compared with a sawlog, yet, in the aggregate, timber in that form in this locality is relatively of equal commercial value with sawlogs, and its carriage to market is, perhaps, as important to the timber industry of this state as that of sawlogs. Elochoman creek was declared to be navigable, for the reason that it furnishes a natural highway for the product of the great logging industry in this state, and Woods creek should, also, be held to’ be navigable, because it furnishes a similar highway for the product of another branch, of the same industry. Elochoman creek was held to he a navigable stream because it is navigable in fact for the floatage of logs or timber to market. Its navigable character is restricted to a certain commercial and industrial purpose, and does not comprehend naviga bility in the broad sense, as applied in America to the great rivers and water highways. The rule that navigability in fact for commercial purposes makes a water course a navigable one was also declared in Dawson, v. McMillan, 34 Wash. 269, 75 Pac. 807. The reasons leading to the holding in this state and others, where the timber industry is important, that streams which are navigable in fact for the floatage of timber to market shall be public highways for that purpose, are founded upon commercial convenience and necessity, because of the environment of the industry. Much of the timber grows in the mountains, also upon the foothills, and in other localities which are inaccessible by means of transportation facilities, without great expense. 17ature has, however, provided numerous streams which flow out from these timber centers, and which are available highways for the carriage of the timber to market. In a locality so situated, it seems reasonable that these highways should be used for such purposes. It is true, the majority of these streams, being unmeandered, pass over private property, and their beds are owned by the adjacent land owner. But the lands are naturally burdened, if it be a burden, by the streams themselves, with their defined banks and flowing water, and it is not an additional burden to the land owner for the timber product to float along with the already running water, provided it is so done as not to damage his land. His rights in the latter particular must, however, be strictly and carefully guarded. Under the former decisions of this court, and for the further reasons herein assigned, the court did not err in holding that Woods creek is a navigable stream for the floatage of shingle bolts. The provision in the decree properly followed, whereby appellant is restrained from interfering with the running of respondent’s shingle bolts along said stream where it crosses appellant’s lands. It being established that the- stream is a navigable one, and that appellant shall not interfere with respondent’s navigation of it, we must next inquire as to the methods and limitations of that navigation. The court refused to grant appellant an injunction preventing respondent from continuing the storage of the water in Lake Eoesiger, and the periodic flushing of the stream. We think this was error. Under well established principles, appellant is entitled to the natural flow of the water across his land. Crook v. Hewitt, 4 Wash. 749, 31 Pac. 28; Rigney v. Tacoma Light & W. Co., supra; New Whatcom v. Fairhaven Land Co., 24 Wash. 493, 64 Pac. 735, 54 L. R. A. 190. It is said that, although language used in the above cases declares the general principle, yet there Was an actual threatened diversion of a substantial portion of the water in each ease, while, in the case at bar, there is no diversion, but simply a detention, followed by a restoration of all the water before it reaches appellant’s lands. This detention, however, amounts practically to a total detention for irregular periods, and at times unknown to appellant, without warning, it is released in such quantities as to greatly increase the natural flow and, according to testimony in the record, actually causes an overflow of his lands. The general principle governing the fundamental rights of all riparian proprietors is well stated as follows: “Hiparían proprietors upon both navigable and unnavigable streams are entitled, in the absence of grant, license, or prescription limiting their rights, to have the stream which washes their lands flow as it is wont by nature, without material diminution or alteration. Each proprietor may, therefore, insist that the stream shall flow to his land in the usual quantity, at its natural place and height, and that it shall flow off his land to his neighbor below in its accustomed place and at its usual level.” Gould, Waters (3d ed.), § 204. That such a detention of water as is shown in this case is prejudicial to the appellant’s rights appears from the following authority: “It is an unreasonable detention of the water to gather it into reservoirs for future use in a dry season, or for the purpose of obtaining a greater supply than the stream affords by its natural flow in ordinary stages, or in order that, by letting it off occasionally, a flood may be obtained for the purpose of floating logs; . . Cooley, Torts (2d ed.), p. 694. The maintenance and operation of the dam prevents appellant from navigating the stream himself at times when he may wish to do so, thereby obstructing navigation, and, unless he consents to its maintenance, the dam is to him a nuisance, which he is entitled to have enjoined. Carl v. West Aberdeen etc. Co., 13 Wash. 616, 43 Pac. 890; Sultan W. & P. Co. v. Weyerhauser Timber Co., 31 Wash. 558, 72 Pac. 114. We therefore think appellant was entitled to an injunction, preventing respondent from maintaining’ and operating the dam, and requiring it to permit the water to flow across appellant’s lands in its natural and regular way, and respondent must conduct its own navigation of the stream over such natural flow. Another provision of the decree, with reference to the methods attending respondent’s navigation, also calls for examination. It will be remembered that, by its terms, the decree prohibits appellant from interfering with respondent’s employes in the way of preventing’ them from going upon the banks of the stream upon appellant’s lands, for the purpose of breaking jams of shingle bolts, so long as the going upon the banks does no injury to appellant or his lands. We think this provision of the decree is also erroneous. We believe we went as far as we should go in the interest of public convenience, when we held, in Watlcins v. Dorris, supm_ that private land owners hold the beds of unmeandered streams subject to the easement of driving timber products over the land. But we tried to make it clear in that case that the timber driver must confine himself and his operations to the highway itself — the hed of the stream, until the land owner consents to the use of the banks, or until the right to their use has been acquired in a lawful way. If more emphatic statement of that rule is necessary, we now wish to be understood as making it, with all needed emphasis. The fundamental principle of right in the land owner to control his own premises, outside of the bed of the stream, must not be violated. To leave parties under such terms as this decree provides would, in many instances, invite trouble and litigation. Each one would assume to be his own judge as to whether any injury is done to the land. What might appear to the land owner as injuiy might not so appear to the timber driver, and thus a controversy would at once arise, probably requiring repeated litigation to settle. The driver must know from the beginning that he must, in no event, go upon the banks of the stream in his operations without the owner’s permission, and thus controversies about damages accruing in that way will be avoided. Enough controversies will arise about the manner of operating in the bed of the stream to the possible damage of the adj acent land, without adding thereto those arising from semi-legalized trespass upon private premises, which would be the case if it were judicially held that one may operate upon private lands against the owner’s consent, and without compensation. The court found that respondent’s acts have produced no actual injury or damage to appellant or his lands. Appellant contends that it was error to so find. The evidence conflicts upon this subject, and we shall not disturb the finding. Do judgment for damages will therefore be directed. Tbe decree should be modified in accordance with what has been herein said. The cause is remanded, with instructions to the trial court to enter a decree conformable to this opinion. The appellant shall recover the costs of the appeal, and neither party shall recover costs in the lower court. Fullerton, C. J., and Mount, Anders, and Dunbar, JJ., concur.

The opinion of the court was delivered by Hadley, J. On the 16th day of April, 1900, the appellant, a corporation, was engaged in constructing a pipe line from Cedar Lake, in King county, Washington, into the city of Seattle; the same-being part of what is known as the “Cedar River Water System.” The respondent was in the employ of appellant as a laborer. A large ditch had been dug, along and through which said pipe line was being laid. The evidence is not harmonious as to the depth of the ditch. The testimony of some of the witnesses as to the depth placed it from seven to eight feet, and that of others from eleven to twelve feet. The ditch was of sufficient width at the bottom to 'admit a pipe about four feet in thickness, and still leave a small space along either side, —perhaps two feet. The pipe was also;, four feet high. The ditch was wider at the top than at the bottom, the sides being made with a slope toward the bottom. At a point near Thirteenth and Massachusetts streets in the city of Seattle the pipe had been placed in its proper position in the ditch, but had not yet been covered with earth. Respondent and another were engaged in shoveling loose dirt which had been thrown out of the ditch to the' side of the pipe. The dirt so thrown in was being tamped or packed by another workman at the lower sides of the pipe so as to hold it more securely in its place until the heavier work of filling- the entire ditch should be done. The upper portion of the sides of the ditch consisted of a hard, gravelly formation resembling cement or concrete, but near the bottom the formation was sandy. Respondent and other witnesses testify that while he was engaged in shoveling the earth as aforesaid the foreman of appellant in charge of the work at that place came along and. said to the respondent, in effect, that the process of shoveling dirt from above for tamping purposes was too slow, and directed respondent to get down into the ditch, and by the use of a pick to dig out the soft earth from the side of the ditch at the bottom; adding that, in that manner one man could do as much work as two could do as they were then working. It was further testified that respondent immediately complied with the direction of the foreman, and got down into the ditch and began digging with his pick from the hard, gravelly formation at the top of the ditch, endeavoring to loosen it and drag it into the ditch; hut that the foreman informed him he did not intend for him to dig from the top, and then went down into the ditch himself, took the pick from the hands of respondent, began digging the soft sand from the side of the ditch at or near the bottom, by way of showing respondent how he desired it done, and then handed the pick back to respondent, with the direction that he should dig as he had been shown; remarking at the time that the soft earth at the bottom was much better for tamping purposes than the harder formation respondent had endeavored to dig from the top. It was further testified that the foreman then went away to look after some other part of the work, and that, respondent continued to dig as he had been directed; and respondent himself testified, that, before leaving, the foreman assured him that the top was solid and would not cave in. Respondent continued to dig at the place-for ten 0.1 fifteen minutes, when a mass of earth broke away from the side wall of the ditch and fell upon him, throwing him back against the pipe and rendering him entirely helpless. The earth was removed from about him by his fellow workmen, and he was taken out in an unconscious condition; having received injuries about the back and hip, and probably others. This suit was brought for the purpose of recovering damages from appellant on account of said injtiries. The cause was tried before a jury, and a verdict returned in favor of respondent in the sum of $1,950. Appellant moved for a new trial, which was denied, and thereupon judgment was entered upon the verdict of the jury for the full amount thereof. From said judgment this appeal was taken. There is no dispute as to the manner in which the accident itself occurred, or as to the fact that respondent received some injuries. The serious character of the injuries as claimed by respondent is contested by appellant, and appellant also denies that the respondent was directed by the foreman to get into the ditch. The foreman himself testified that he did not so direct respondent, but, upon the contrary, says he told him to get out of the ditch, when he saw him there, and warned him that he was in danger. In this he is supported by the testimony of at least one other witness. It is first assigned as error that the court denied appellant’s challenge to the legal sufficiency of the evidence at the close of respondent’s testimony; and it is further assigned that the court erred in denying appellant’s motion for a non-suit, and also in refusing appellant’s request at the close of respondent’s evidence that the court should instruct the jury to return a verdict for the appellant. It is insisted by appellant that the evidence introduced in behalf of respondent showed that his injury was caused by respondent’s undermining the side of the ditch, causing the upper earth to fall upon him; that the risk of doing such an act was one which he assumed; that his act was one of contributory negligence, defeating his right to recover, and it was immaterial whether the foreman told him to do such act or not. In considering these assignments of error, it must be conceded that respondent went into the ditch and did the work he was doing at the direction of appellant’s foreman, since three witnesses so testified. It is argued that the danger was so obvious that any sane man would know that, if the wall of the ditch were undermined at the bottom, the top wall would cave in. It will be remembered that the space between the pipe, which was four feet high, and the side wall, was very narrow. In this narrow space respondent was digging. He had worked there ten or fifteen minutes. It is manifest he could not have dug a considerable amount of earth within that time, and under the particular circumstances. The evidence shows that he had probably dug under the side wall to a distance laterally of one foot and a half. The extent of the digging in other directions is not very clear. All the witnesses agree that the top portion of the side wall was composed of a very hard, gravelly formation, resembling cement or concrete. Such a substance, it may not have been unreasonable to suppose, would be supported to some extent by its lateral adherence, more than would have been the case with ordinary earth, and that it would not be as apt to break and cave as ordinary loose dirt, even though undermined to some extent. The danger can therefore scarcely be said to have been as obvious as it might have been had the wall been entirely composed of ordinary earth or of sand, as it was at the bottom. The evidence showed that respondent was not accustomed to digging in such trenches. He had not helped to dig this trench. His work had been that of assisting to' put bands around the pipe after it was placed in the ditch. But he had been directed to shovel earth as aforesaid for a time before the accident occurred. It cannot be said that he was as chargeable with knowledge of the nature of the soil there, as if he had assisted in. digging the ditch at that point, or as if his attention had been specially directed to the nature of the formation. For the purposes of this discussion, it must be considered that the foreman directed respondent to work there, showed him just where and how he was to work, and assured him that there was no danger of the top wall breaking’ by reason of digging as he was directed. Under such circumstances, the appellant, through its foreman, was chargeable Avith knowledge of the nature of the soil and of the attendant danger. The wall of the ditch had previously caved in, and at a point not far from where respondent was working, but it appears that respondent did not know of it. A witness experienced in work of that character testified that the walls should have been “shored up,” or braced by timbers. The danger was, however, not so obvious to' one with respondent’s lack of experience, and Avho had been engaged at other work, that it may be said, as a matter of law, that he had no right to rely upon the foreman’s direction and assurances, and that he assumed the risk. In Laporte v. Cook, 21 R, I. 158 (12 Atl. 519), an employee of a city was digging in a trench six and one-half feet deep, as directed by a boss. The bank caved in and injured him. He had been working in the trench but a short time, and did not know of the peculiar character of the soil; nor did he know what the boss knew, — that the bank of the trench had previously caved in in other places. It was held that the question whether he Avas guilty of contributory negligence was for the jury. The above case is criticized by appellant as not being in point here,' for the reason that it appears that the bank in that case fell from natural causes, and not from being undermined by the party injured; and it is also suggested that Larich v. Moies, 18 R. I. 513 (28 Atl. 661), is approvingly cited and distinguished, it being contended that the last named case does not support, respondent’s recovery here. In that case the injured party was shoveling sand at. a sand bank. There was an overhanging bank, which was held to be obvious, and recovery was denied. The conditions in the case at bar, as outlined above, do not seem to us to present such an obvious danger as in the one last mentioned. There is nothing in the case to indicate that the formation was similar to that in this case, as to the concrete character of the upper wall. Indeed, such an overhanging wall in an ordinary sand bank, where sand is being undermined extensively for market purposes, seems to us to present an entirely different case, as to obvious danger. In any event, we think the general principles discussed in Laporte v. Cook, supra, are applicable here. The court, at page 520 (21 R. I. 160), said: ”Coan v. City of Marlborough, 164 Mass. 206, 41 N. E. 238, Avas a much stronger case for the defendant than is the one before us, but the court held the question of assumed risk to be one of fact for the jury. In ihat ease the court said: ‘Whether the plaintiff knew and appreciated the danger from the lack of proper shoring was a question of fact. He knew that the trench was.not close-sheathed, and saw what portion of its sides were not covered; knew the nature of the soil and the depth of the trench, and that blasting was done to remove rock at the bottom, and that small quantities of earth frequently fell from the sides, and he had Avorked much in such trenches. These things make in favor of the- contention that he knew and appreciated the danger, and assumed the risk of injury. But they are not conclusive, as there was evidence of other facts proper for the consideration of the jury. The plaintiff was a common laborer, working where he was told to work, and having no discretion as to- where he should stand.’ ” In Faulkner v. Mammoth Mining Co. (Utah), 66 Pac. 799, it was held that a miner who was engaged, by order of his foreman, in excavating at a place which the foreman assured him was safe, had a right to rely on such assur anee, and did not assume the risk incident to the surroundings. In Thompson v. Chicago, M. & St. P. Ry. Co., 14 Fed. 564, the complaint alleged that the deceased was directed by the representative of the defendant to excavate earth from an embankment, where, by reason of the fact that a portion of the earth of the embankment was mixed with sand and fine gravel, it was liable to cave off and fall upon the deceased. It was further alleged that the deceased was not acquainted with such work, and did not know the effects of such excavating, or the liability to danger of the earth of such embankments, and that he believed the bank was secure. It was further alleged that the condition of the bank was known to the employer. The complaint was held, to state a cause of action. In Ross v. Shanley, 185 Ill. 390 (56 N. E. 1105), the injured person was ordered to work in a tunnel. He was experienced in tunnel work, and it was contended that he assumed the risk incident to defective shoring in the tunnel. Upon that subject the language of the appellate court of Illinois, which was approved by the supreme court, is as follows, at page 1106 (185 Ill. 393), of the opinion: “ but it is said that appellee assumed the risk of any dangers of his work, and, being an experienced man in tunnel work, was chargeable with knowledge of any defects in the shoring which existed; that he knew, or could have known by the exercise of ordinary care on his part, any such defects as well as appellants’ foreman. This contention is not, in our opinion, tenable. Appellants’ foreman was chargeable with a specific duty, to-wit: that of exercising reasonable care to see that the place where he sent appellee to work was reasonably safe, and appellee had the right to rely upon the performance of such duty by appellants’ foreman before he gave the order for him to work where he did. Appellee was not required to make a critical and careful examination of his surroundings at the place where he was sent to work by the foreman. We think it was properly left to the jury to determine whether appellants’ foreman exercised such reasonable and ordinary care to see that the place where he ordered appellee to work was reasonably safe before he sent him there to work, and also whether appellee knew, or should have.known, the ■danger to which he was exposed.’ ” In Shortel v. St. Joseph, 104 Mo. 114 (16 S. W. 397, 24 Am. St. Rep. 317), a section of a sewer had been arched over. The engineer directed a workman to- go under the arch and remove the supports. In doing so he was injured. It was contended that the danger was obvious, and that the workman assumed the risk. The court said at pages 397 and 398 (104 Mo. 120) : “The master and servant do not stand upon an equal footing, even when they have equal knowledge of the danger. The position of the servant is one of subordination and obedience to the master, and he has the right to rely upon the superior knowledge and skill of the master. The .servant is not entirely free to act upon his own suspicions of danger. If, therefore, the master orders the servant into a place of danger, and the servant is injured, he is not guilty of contributory negligence, unless the danger was so glaring that a reasonably prudent person would not have entered into it.” In Wolf v. Great Northern Ry. Co., 72 Minn. 435 (75 N. W. 702), the injured party was directed by the foreman to tear down a wall of stone and mortar by first removing a section of stone from the front of the lower part of the wall. It was in the spring of the year, and the foreman told the workman that the frost would hold it, and that the wall was safe. The result was that the upper wall fell and injured the workman. It was contended that the danger was obvious, and that the plaintiff assumed the risk; but the court held that while such might have been true with an ordinary earth wall, yet a wall of stone and mortar Is supposed to- have lateral support by reason of the adher ence of the mortar, and refused to hold that the danger was so obvious that plaintiff assumed the risk. The argument there applied may be said to apply in some degree to the upper portion of the wall in the case, at bar, — sufficient, at least, to make it a question for the jury whether the danger was so obvious that a reasonably prudent man would have refused to work there when directed by his foreman, and when assured by him that it was safe. In Illinois Steel Co. v. Schymanowski 162 Ill. 477 (44 N. E. 876), a workman was, employed at night to assist in loading iron ore which another gang of employees working in the daytime had loosened from a large pile; the pieces so detached requiring to be broken with picks. He was working at the foot of the pile; where it was perpendicular, and asked the foreman for more light; the night being dark. The foreman told him, with an oath, to go to work, and, seizing a pick, struck the pile several times at the perpendicular place, and directed plaintiff to work there. The plaintiff obeyed the order, and soon afterwards was struck by a large piece of ore which fell from the pile. It was held that the question of the defendant’s liability was for the jury. It was further held that where the master orders a servant to perform certain work, the latter has a right to assume that the master, with his superior knowledge, will not expose him to unnecessary peril, and, though such servant has some knowledge of the danger, his right of recovery will not be defeated, if, in obeying the order, he acts with the degree of prudence which an ordinarily prudent man would exercise under the circumstances. We therefore think the court properly submitted this case to the jury. We think it was not for the court to say, as a matter of law, that the respondent was guilty of contributory negligence, and did not act as an ordinarily prudent person would have done, when all the circumstances were considered, but that question was. for the jury. This court- has repeatedly held that generally the question of contributory negligence is for the jury, and that the court is rarely justified in withdrawing it from the jury; that, to justify the withdrawal of the case from the jury, the acts done must be so palpably negligent that there can be no two opinions concerning them in the minds of reasonable men. McQuillan v. Seattle, 10 Wash. 464 (38 Pac. 1119, 45 Am. St. Rep. 799) ; Steele v. Northern Pacific Ry. Co., 21 Wash. 287 (57 Pac. 820) ; Traver v. Spokane St. Ry. Co., 25 Wash. 225 (65 Pac. 284) ; Jordan v. Seattle, 26 Wash. 61 (66 Pac. 114) ; Burian v. Seattle Electric Co., 26 Wash. 606 (67 Pac. 214). The above discussion disposes of the principal questions raised in the case. The remaining assignments of error are based upon the instructions given by the court, and upon the refusal to give certain others requested by appellant. We have examined the charge of the court, and we believe it fairly and pointedly stated the law of the case in harmony with the views heretofore expressed. We do not, therefore, deem it necessary to discuss the instructions. The facts were properly submitted to the jury, and they were plainly told by the court that, even though they should find that respondent was ordered by the foreman to work at the place and in the manner as respondent claims, still he could not recover if the danger was so obvious and apparent that an ordinarily careful and prudent man would, under like circumstances, have refused to' obey. This, we think, was a true statement of the law. The jury found the facts against appellant, and, since we find no error on the part, of the court, the judgment is affirmed. Reavis, C. J., and Fullerton, Dunbar, Anders and Mount, JJ., concur. White, J., not sitting.

Pearson, J. The principal issue presented in this appeal is whether the trial court committed reversible error by admitting, pursuant to ER 404(b), extensive evidence of three burglaries, admittedly committed by the defendant, to prove the identity of the defendant as the perpetrator of three rapes for which no assailant had been positively identified. Over 35 years ago, Justice Hill warned against the admission of such evidence, where "its effect would be to generate heat instead of diffusing light, or . . . where the minute peg of relevancy will be entirely obscured by the dirty linen hung upon it." State v. Goebel, 36 Wn.2d 367, 379, 218 P.2d 300 (1950). In our opinion, this warning was not heeded in this case. Accordingly, we reverse and remand for a new trial. I In this case, the State confronted a significant problem. Three Seattle women had been raped by an unknown assailant, and none of the women could positively identify the man who had accosted them. Based upon a composite of descriptive characteristics of the assailant offered by the three women, it appears the rapist: (1) was a light-skinned black man, (2) who was very clean shaven, (3) wore a short afro, (4) was about 5 feet 5 inches to 5 feet 7 inches in height, (5) wore a leather jacket, (6) and leather gloves, (7) and had a gentle voice. Despite the aforementioned similarities, there was some degree of inconsistency between the physical characteristics of the assailant or assailants described by the women. Furthermore, there were several troubling dissimilarities with respect to the rapist's modus operandi. As made clear by the testimony supplied by the rape victims, the three rapes might have been committed by two or more different assailants, each of whom coincidentally bore the same general physical characteristics observed by the victims. On the other hand, all three rapes might have been committed by the same assailant. Regardless, the State had no concrete evidence establishing the assailant's identity. Unfortunately for the defendant, he fit the general physical description of the rapist, and was known to have bur glarized, or attempted to burglarize, three ground-floor apartments in Seattle during the same time the rapes occurred. Apparently noticing the general physical similarities between the unknown rapist and the defendant, the State seized the opportunity after defendant's third burglary arrest, and charged him with three counts of first degree rape. As stated above, however, the State could not obtain positive identification of the defendant from the rape victims. To prove identity, the State sought to admit into evidence the facts surrounding defendant's burglaries, arguing that the modus operandi of the burglaries was sufficiently similar to the modus operandi of the rapes, thus proving that the one who committed the burglaries (defendant) also was the unknown assailant who committed the three rapes. At trial, defense counsel moved in limine to exclude evidence of the burglaries, arguing the evidence was irrelevant and, regardless, the prejudicial effect of the evidence outweighed whatever relevance the burglaries had to the rapes. Without analyzing these contentions on the record, the trial judge denied the motion, ruling the evidence was admissible. Defendant appealed, arguing that the burglary evidence was inadmissible under ER 404(b) and this court's interpretations of that rule. II The admissibility of the burglary evidence is governed by ER 404(b), which permits evidence of other crimes to show "identity", but not "to prove the character of a person in order to show that he acted in conformity therewith." As we said in State v. Saltarelli, 98 Wn.2d 358, 361, 655 P.2d 697 (1982), ER 404(b) must be read in conjunction with ER 402 and 403. ER 402 prohibits admission of evidence which is not relevant. Relevant evidence is defined in ER 401 as evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable . . . than it would be without the evidence. ER 403 requires exclusion of evidence, even if relevant, if its probative value is substantially outweighed by the danger of unfair prejudice. See State v. Goebel, supra. As stated in State v. Coe, 101 Wn.2d 772, 780-81, 684 P.2d 668 (1984), " [cjareful consideration and weighing of both relevance and prejudice is particularly important in sex cases, where the potential for prejudice is at its highest." In Saltarelli, this court defined the analysis a trial court must employ before admitting evidence of other crimes. First, the court must identify the purpose for which the evidence is to be admitted. Saltarelli, at 362. Second, the court must determine the relevancy of the evidence. In determining relevancy, (1) the purpose for which the evidence is offered "must be of consequence to the outcome of the action", and (2) "the evidence must tend to make the existence of the identified fact more . . . probable.11 Saltarelli, at 362-63. Third, after the court has determined relevancy, it must then "balance the probative value against the prejudicial effect ..." (Italics ours.) Saltarelli, at 363. As stated in State v. Bennett, 36 Wn. App. 176, 180, 672 P.2d 772 (1983), " [i]n doubtful cases the scale should be tipped in favor of the defendant and exclusion of the evidence." In State v. Jackson, 102 Wn.2d 689, 694, 689 P.2d 76 (1984), this court held that a trial court errs if the judge does not undergo the aforesaid analysis on the record. Failure to do so precludes the trial court's "thoughtful consideration of the issue", and frustrates effective appellate review. Jackson, at 694. The trial court in this case did not analyze the admissibility of the burglary evidence on the record. Although Jackson had not been decided by the time this case was tried, the parties did not address the question of whether Jackson should be given retroactive effect. Accordingly, we decline to resolve the issue at this time. Nevertheless, we again reiterate that, without a complete analysis appearing on the record, we are unable to determine whether a trial court's exercise of discretion was based upon a careful and thoughtful consideration of the issue. As stated above, Saltarelli requires that we identify the purpose for which the burglary evidence was offered. The record reveals the State offered the evidence of defendant's burglaries for the purported purpose of proving the identity of the defendant as the rapist. Saltarelli also requires this court to determine whether the purpose for which the State offers the evidence is of consequence to the rape prosecution. In this case, identification of the defendant clearly was of great consequence to the prosecution. To be relevant under Saltarelli, however, the proffered evidence must make the existence of the identified fact — in this case defendant's identity — more probable than it would be without the evidence. In our opinion, the evidence that the defendant committed three burglaries fails this prong of the Saltarelli relevance test. Our conclusion rests upon two decisions, State v. Laureano, 101 Wn.2d 745, 682 P.2d 889 (1984) and State v. Coe, supra, in which this court dealt with the propriety of admitting Goebel evidence to establish identity. In our opinion, Laureano and Coe control the result in this case. In Laureano, the State prosecuted the defendant for a first degree murder which occurred during the robbery of a couple at their home. The State sought to offer evidence of a similar robbery for which the defendant was arrested, in order to prove his identity as the perpetrator of the earlier murder. In holding the evidence of the second robbery was admissible to show the defendant's identity as the murderer, we stated: The method employed in the commission of both crimes must be so unique that mere proof that an accused committed one of them creates high probability that he also committed the act charged. (Italics ours.) Laureano, at 764 (citing State v. Irving, 24 Wn. App. 370, 374, 601 P.2d 954 (1979), review denied, 93 Wn.2d 1007 (1980)). Furthermore, the court went on to quote Professor Meisenholder for the proposition that: Mere similarity of crimes will not justify the introduction of other criminal acts under the ride. There must be something distinctive or unusual in the means employed in such crimes and the crime charged. (Italics ours.) Laureano, at 765 (quoting 5 R. Meisenholder, Wash. Prac. § 4, at 13 (1965), quoted in State v. Irving, at 374). In Laureano, this court found there were a number of distinctive characteristics common to the two crimes. Lau-reano, at 765. Although not all of the characteristics described in Laureano were "unique", there were sufficient distinctive characteristics between the crimes to justify the conclusion that there was a high probability the same person committed both crimes. In short, the proffered evidence was relevant. As discussed below, however, the same simply cannot be said in this case. In State v. Coe, supra, the State sought to introduce evidence of the defendant's prior sexual acts with his girl friend to establish the defendant's modus operandi, and thereby his identity as a rapist. This court again said that [t]he method employed in committing the act must be so unique that mere proof that an accused acted in a certain way at a certain time creates a high probability that he also committed the act charged. (Citations omitted. Italics ours.) Coe, at 777. The court went on to state that '"[t]he device used must be so unusual and distinctive as to be like a signature.'" Coe, at 777 (citing E. Cleary, McCormick on Evidence § 190, at 449 (2d ed. 1972)). This court then explained why signature-like similarity is required. "The requirement that the evidence be distinctive or unusual insures that the evidence is relevant. The greater the distinctiveness . . . the higher the probability that the defendant committed the crime." Coe, at 777-78. The court went on to hold that " [t]he words and actions of the perpetrator of the rape, though similar to Coe's behavior with his former girl friend, do not meet the stringent test of uniqueness required for admission to establish identity." (Italics ours.) Coe, at 778. Likewise, applying this "stringent test of uniqueness" to this case, we conclude that evidence of defendant's burglaries was not relevant, and therefore should have been excluded by the trial court. The State identifies several very general similarities between the rapes and the burglaries with respect to the time, manner and location of the crimes, and notes that the rapist and defendant both wore a leather jacket and gloves when committing the crimes. In our opinion, these general similarities might have been as much due to coincidence as to modus operandi. Regardless, there were few, if any, distinctive or unique characteristics shared in common between the burglaries and the rapes. For example: (1) of the three burglaries and three rapes, only one rape and one burglary occurred on the same day or in close proximity to one another; (2) in the case of all six crimes, the mode of entry, through a door or window, was not unusual, let alone unique; (3) the items stolen in the burglaries differed somewhat from those taken at the scene of the rapes; (4) the clothing worn by defendant at the time of his arrest for burglary differed from that worn by the rapist; (5) the rapist wore gloves during each of the rapes, whereas defendant did not wear gloves during at least one of the burglaries. Despite the existence of these marked dissimilarities, and the absence of any distinctive similarities, the trial court admitted the burglary evidence. In Laureano, we admitted evidence of the second burglary on the ground the trial court's decision was not "manifestly unreasonable". The reason its decision was not manifestly unreasonable is obvious: the evidence met the relevancy requirements of our decisions interpreting ER 404(b) because there were distinctive characteristics present in both crimes. In this case, on the other hand, the burglary evidence was not relevant under ER 404(b) because of the absence of any distinctive similarities between the rapes and the burglaries. Therefore, the trial court abused its discretion by admitting it. Because the burglary evidence is not relevant, we do not find it necessary to engage in an in-depth discussion of whether the danger of unfair prejudice demands exclusion of the evidence. Suffice it to say, however, that regardless of the limited probative value inhering in the evidence, the danger of unfair prejudice looms large. To admit such evidence in a rape trial for which no defendant has been positively identified simply invites the jury to engage in speculation. Such a result is contrary to the fundamental principles of fairness and due process upon which our criminal justice system is based. Ill Mere inadmissibility of the burglary evidence does not resolve this case. This court must consider whether admission of the inadmissible evidence constitutes reversible error. An accused cannot avail himself of error as a ground for reversal unless it has been prejudicial. State v. Cunningham, 93 Wn.2d 823, 831, 613 P.2d 1139 (1980). In State v. Jackson, 102 Wn.2d 689, 695, 689 P.2d 76 (1984), we held that " [ejvidentiary errors under ER 404 are not of constitutional magnitude." Where the error is not of constitutional magnitude, we apply the rule that "error is not prejudicial unless, within reasonable probabilities, had the error not occurred, the outcome of the trial would have been materially affected." (Citations omitted.) Cunningham, at 831. Accord, State v. Robtoy, 98 Wn.2d 30, 44, 653 P.2d 284 (1982). A review of the record compels our conclusion that the outcome of the trial might reasonably have been materially affected if the trial court had excluded the challenged evidence. As set forth earlier in this opinion, no one could positively identify the defendant as the rapist. Furthermore, testimony from the victims reveals that the three rapes could have been committed by two or more different persons. Where identity of the accused is such a crucial issue, evidence of other unrelated crimes generates a good deal more heat than light, and may well be the basis upon which the jury convicts the accused. Under the test enunciated in Cunningham, admission of the evidence was preju dicial error, entitling defendant to a new trial. IV The defendant also argues that, ignoring the burglary evidence, the prosecution adduced insufficient evidence that defendant was the perpetrator of the three rapes. The question for this court is "whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." (Italics omitted.) State v. Green, 94 Wn.2d 216, 221, 616 P.2d 628 (1980) (quoting Jackson v. Virginia, 443 U.S. 307, 319, 61 L. Ed. 2d 560, 99 S. Ct. 2781 (1979)). After reviewing the record, we conclude the circumstantial evidence as to the identification of the defendant as the rapist, together with the equivocal identifications by the victims, constitutes sufficient evidence upon which a rational trier of fact could conclude that defendant was the perpetrator of the rapes. Accordingly, we reverse the defendant's conviction and remand for a new trial. Dolliver, C.J., and Utter, Dore, and Goodloe, JJ., concur.

Dolliver, J. Plaintiffs in both these consolidated cases appeal from trial court decisions which held RCW 69.50-.505(b), authorizing the seizure of real property subject to forfeiture, is unconstitutional on its face and as applied to seizure of a private residence and residential rental property. The trial courts reached these conclusions by ruling the statute fails to provide minimal due process safeguards under the United States and Washington State Constitutions. In addition, the plaintiffs in Tellevik v. 9209 218th N.E. appeal the trial court's decision interpreting RCW 69.50-.505(a)(8) as requiring a present use of real property violating the statute in order to permit a seizure. The plaintiffs in Tellevik v. 31641 West Rutherford Street appeal the trial court's grant of summary judgment and award of attorney fees in favor of defendant Janet Pearson and the denial of plaintiffs' CR 56(f) motion. Tellevik v. 9209 218th N.E., cause 57763-3 On October 27,1989, the Snohomish County Regional Narcotics Task Force and the Eastside Narcotics Task Force executed a search warrant on residential real property located at 9209 218th N.E. in Redmond. The owners and occupants of the residence, Charles L. Wilson and Janet L. Wilson (defendants), were present dining the search. The officers found a marijuana grow operation, consisting of three rooms and approximately 60 mature plants and 70 starter plants, in the "crawl space" beneath the first floor of the residence. There is no allegation the search warrant was improperly obtained or executed. On April 6, 1990, Charles Wilson pleaded guilty to possession of marijuana with intent to manufacture in violation of RCW 69.50.401(a); charges against Janet Wilson were dismissed. On May 15, 1990, George B. Tellevik, Chief of the Washington State Patrol, and James I. Scharf, Sheriff of Snohomish County (plaintiffs), applied ex parte for a warrant of arrest in rem, although the defendants assert plaintiffs knew they were represented by counsel. On May 21, 1990, after the trial court orally informed the plaintiffs it would not issue the warrant, they filed a complaint for forfeiture in rem and a lis pendens. On May 25, 1990, the trial court issued its written order denying issuance of the warrant. The court interpreted RCW 69.50.505(a)(8) as permitting a seizure only when the property is "currently being used in violation of RCW 69.50-.505(a)(8)." The motion for reconsideration was denied. On July 5, 1990, plaintiffs filed a motion for discretionary review of the trial court order. On July 16, 1990, the defendants moved to dismiss the complaint for forfeiture in rem, but these proceedings were stayed pending resolution of review in the appellate court. On August 3, 1990, defendants filed a cross motion for discretionary review of the trial court order challenging the constitutionality of the statute. The Court of Appeals denied both motions for discretionary review. On October 2, 1990, an agreed order was entered setting aside the stay, and defendants refiled their motion to dismiss the complaint for forfeiture in rem, asserting (1) the court lacked jurisdiction over the property because it was never seized, and (2) the statute was unconstitutional on its face and as applied. On November 1, 1990, the trial court granted the motion to dismiss on both grounds. The court also released the lis pendens. Plaintiffs appealed. Tellevik v. Real Property Known as 31641 West Rutherford Street, cause 57566-5 On September 26, 1989, the Eastside Drug Task Force executed a search warrant on the residential real property located at 31641 West Rutherford Street in Carnation. The residence was used as a rental property by its owners, Donald W. Pearson and Janet A. Pearson. Upon execution of the warrant, the officers found a marijuana grow operation, consisting of three rooms of equipment and approximately 40 marijuana plants, in the basement of the house which had been modified to provide access through a trapdoor. Donald Pearson was present in the residence during the execution of the warrant and taken into custody. Subsequently, Mr. Pearson and the renter of the property pleaded guilty to possession with intent to manufacture marijuana, in violation of RCW 69.50.401(a). As in the prior case, there is no allegation the search warrant was improperly obtained or executed. On April 13, 1990, a complaint for forfeiture in rem was filed by plaintiff George B. Tellevik, Chief of the Washington State Patrol, against defendant real property, pursuant to RCW 69.50.505(a)(8). Gregory J. Webb, Chief of the Carnation Police Department, was later added as a party plaintiff by stipulated order. A lis pendens was also filed on the property. At an ex parte hearing, the presiding judge found probable cause to believe the defendant property was subject to forfeiture under RCW 69.50.505 and signed a warrant of arrest in rem. The judge based the finding of probable cause on the complaint for forfeiture in rem and the affidavit of one of the Carnation police officers who executed the search warrant. The summons, complaint for forfeiture in rem, lis pendens, notice of seizure and intended forfeiture, the warrant of arrest in rem, and the supporting affidavit were served on defendants Donald and Janet Pearson on April 13, 1990. Both defendants moved to dismiss the complaint arguing RCW 69.50.505(b) is unconstitutional on its face and as applied; Janet Pearson also moved for summary judgment under the innocent owner provision of RCW 69.50.505-(a)(8)(i). Plaintiffs moved for a continuance on the summary judgment motion to complete discovery, pursuant to CR 56(f). On September 5, 1990, the trial court held the statute was unconstitutional on its face and as applied. The court (1) granted Janet Pearson's motion for summary judgment ruling there was no genuine issue of fact as to whether Mrs. Pearson was an innocent owner and plaintiffs had failed to demonstrate that further discovery would establish that she was not an innocent owner; (2) denied plaintiffs' motion for a continuance; and (3) awarded Janet Pearson attorney fees pursuant to RCW 4.84.185. The court also denied Janet Pearson's motion for an order prohibiting a forced sale of the community real property because she failed to demonstrate such a sale would work a manifest injustice. The warrant for arrest in rem was quashed and the lis pendens canceled. Plaintiffs appealed. I The first issue is whether the trial court in Tellevik v. 9209 218th N.E. erred in holding RCW 69.50.505(a)(8) required a present illegal use in order to subject the property to seizure. Because the warrant was not sought until several months after the marijuana had been removed from the property, the. court found no present use and refused to issue a warrant of arrest in rem. RCW 69.50.505(a)(8) provides: The following are subject to seizure and forfeiture and no property right exists in them: (8) All real property, including any right, title, and interest in the whole of any lot or tract of land, and any appurtenances or improvements which are being used with the knowledge of the owner for the manufacturing, compounding, processing, delivery, importing, or exporting of any controlled substance . . .[.] (Italics ours.) Defendants contend the plain meaning of the language supports the trial court's interpretation and, because dif ferent language was used in subsection (a)(8) as opposed to the language in RCW 69.50.505 for other types of property — "used, or intended for use" — and as opposed to the language in the federal counterpart, 21 U.S.C. § 881(a)(7) — "which is used, or intended to be used", the Legislature must have intended a different result. When the wording of a statute is plain and unambiguous, its meaning must be derived from the wording used. Rozner v. Bellevue, 116 Wn.2d 342, 347, 804 P.2d 24 (1991). The plain language of the statute states that "real property . . . and any appurtenances or improvements which are being used with the knowledge of the owner" in violation of the statute are "subject to seizure and forfeiture and no property right exists in them". RCW 69.50.505(a)(8). The wording does not allow real property, as it does for other types of property, to be subject to seizure which is only "intended for use" in violation of the statute. Thus, the Legislature narrowed the circumstances under which real property was subject to seizure to those circumstances where it is being used with the knowledge of the owner. The crux of this issue is whether property, which is subject to seizure and forfeiture, loses this status when illegal conduct ceases due to law enforcement intervention. In interpreting a statute, the primary goal is to promote the intent of the Legislature. Rozner, 116 Wn.2d at 348. The Legislature has declared: [T]he forfeiture of real assets where a substantial nexus exists between the commercial production or sale of the substances and the real property will provide a significant deterrent to crime by removing the profit incentive of drug trafficking, and will provide a revenue source that will partially defray the large costs incurred by government as a result of these crimes. The legislature recognizes that seizure of real property is a very powerful tool . . .. Laws of 1989, ch. 271, § 211, p. 1298. If the statute were interpreted to allow property subject to seizure to lose this status when law enforcement intervenes to stop the illegal conduct, the purposes of the statute would not be furthered, but hampered. Law enforcement must establish probable cause for issuance of a warrant of arrest in rem that the property was being used with the knowledge of the owner in violation of the statute and that a substantial nexus exists between the commercial production or sale of the controlled substance and the real property. RCW 69.50.505(a)(8). As plaintiffs point out, this information may not be available until after a search warrant is issued, a search conducted, contraband seized, and occupants arrested. Tb interpret the statute as requiring a continuing illegal use from the time of search and arrest to the time of seizure would negate the legislative purpose of removing the profit incentive from drug trafficking and defraying governmental expense because law enforcement would rarely be able to establish the requisite probable cause for seizure prior to the search of the property and arrest of the occupants. We hold RCW 69.50.505(a)(8) to mean that property which is subject to seizure does not lose this status by virtue of law enforcement intervention. II Next, the Wilson defendants and amicus assert RCW 69.50.505(b) is unconstitutional as applied under the due process clause of the federal and state constitutions. However, defendants and amicus failed to address the factors set forth in State v. Gunwall, 106 Wn.2d 54, 720 P.2d 808, 76 A.L.R.4th 517 (1986) in asserting a violation under the state constitution. An analysis of the Gunwall factors, especially prior state constitutional law and preexisting statutory law, would seem to be particularly appropriate in determining whether the ex parte procedure followed here meets due process standards. See Gunwall, 106 Wn.2d at 61. This court has declined to address independent state constitutional grounds when they have "not been thoroughly briefed and discussed". Gunwall, 106 Wn.2d at 62; World Wide Video, Inc. v. Tukwila, 117 Wn.2d 382, 390, 816 P.2d 18 (1991); Rozner v. Bellevue, supra at 351-52; Spokane v. Douglass, 115 Wn.2d 171, 176, 795 P.2d 693 (1990). Because the defendants have not addressed the Gunwall factors, we only address whether the procedure used meets federal due process standards. A statute must be given a construction which preserves its constitutionality if at all possible. High Tide Seafoods v. State, 106 Wn.2d 695, 698, 725 P.2d 411 (1986), appeal dismissed, 479 U.S. 1073 (1987). RCW 69.50.505(b) provides: Real . . . property subject to forfeiture under this chapter may be seized by any board inspector or law enforcement officer of this state upon process issued by any superior court having jurisdiction over the property. Seizure of real property shall include the filing of a lis pendens by the seizing agency. Real property seized . . . shall not be transferred or otherwise conveyed until ninety days after seizure or until a judgment of forfeiture is entered, whichever is later . . .. (Italics ours.) Initially, we note defendants and amicus allege the term "process" in the statute is broad and refers to any form of order, writ, summons or notice, rather than only to a warrant. We reject this view and agree with plaintiffs that "process" should be interpreted more narrowly as a judicial writ in order to preserve the constitutionality of the statute. See State ex rel. Hagen v. Superior Court, 139 Wash. 454, 460, 247 P. 942 (1926). Plaintiffs assert the determination of whether RCW 69.50-.505(b) is unconstitutional as applied to seizure of real property upon ex parte issuance of a warrant in rem is resolved by an analysis of the three factors set forth in Mathews v. Eldridge, 424 U.S. 319, 335, 47 L. Ed. 2d 18, 96 S. Ct. 893 (1976): First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail. (Citations omitted.) Plaintiffs contend that because a seizure does not deprive a person of physical possession of the property, unless there is further action by the seizing agency, the private interest affected is slight; the risk of erroneous deprivation is small because a neutral and detached magistrate issues the war rant in rem based upon probable cause; and the government has a substantial interest to begin forfeiture proceedings, to remove the profit incentive of drug trafficking, and to provide revenue to the government to enforce the drug laws. The Wilson defendants and amicus, relying on Fuentes v. Shevin, 407 U.S. 67, 81-82, 90, 32 L. Ed. 2d 556, 92 S. Ct. 1983 (1972), argue that due process generally requires notice and an opportunity for a full evidentiary hearing prior to the deprivation of a property interest unless there are extraordinary circumstances justifying postponing the hearing. In Fuentes, purchasers of household goods under conditional sales contracts challenged the constitutionality of prejudgment replevin statutes which allowed a party to obtain a writ of replevin upon ex parte application to a court clerk. The Court held that only in extraordinary situations is the postponement of a hearing allowed. Extraordinary circumstances exist when three criteria are present: First, in each case, the seizure has been directly necessary to secure an important governmental or general public interest. Second, there has been a special need for very prompt action. Third, the State has kept strict control over its monopoly of legitimate force: the person initiating the seizure has been a government official responsible for determining, under the standards of a narrowly drawn statute, that it was necessary and justified in the particular instance. . . . Fuentes, 407 U.S. at 91. Defendants argue that in the context of seizing real property, there is no need for prompt action because real property cannot be readily moved or concealed and therefore seizure without a prior hearing is invalid. The one Supreme Court case which addresses a due process challenge to restraint of real property subject to forfeiture expressly did not consider whether a hearing was required before the restraining order was imposed. See United States v. Monsanto, 491 U.S. 600, 615 n.10, 105 L. Ed. 2d 512, 109 S. Ct. 2657 (1989). Consequently, a resolution of this issue depends upon our interpretation of federal law in this area. In the context of personal property subject to forfeiture, the Court has permitted outright seizure with no type of hearing when the Fuentes criteria are met. See Calero-Toledo v. Pearson Yacht Leasing Co., 416 U.S. 663, 678-80, 40 L. Ed. 2d 452, 94 S. Ct. 2080 (1974); United States v. Von Neumann, 474 U.S. 242, 249 n.7, 88 L. Ed. 2d 587, 106 S. Ct. 610 (1986) (no preseizure hearing required when customs officials make seizure at border). Calero-Toledo involved the seizure of a yacht, without a prior hearing or probable cause determination, which was subject to forfeiture under Puerto Rico statutes. The Court held the following considerations justified postponement of notice and a hearing until after the seizure in the context of the yacht forfeiture: First, seizure under the Puerto Rican statutes serves significant governmental purposes: Seizure permits Puerto Rico to assert in rem jurisdiction over the property in order to conduct forfeiture proceedings, thereby fostering the public interest in preventing continued illicit use of the property and in enforcing criminal sanctions. Second, preseizure notice and hearing might frustrate the interests served by the statutes, since the property seized — as here, a yacht — will often be of a sort that could be removed to another jurisdiction, destroyed, or concealed, if advance warning of confiscation were given. And finally, unlike the situation in Fuentes, seizure is not initiated by self-interested private parties; rather, Commonwealth officials determine whether seizure is appropriate under the provisions of the Puerto Rican statutes. . . . (Footnotes omitted.) Calero-Toledo, 416 U.S. at 679. In a similar case involving the seizure of cash subject to forfeiture, without a prior hearing or probable cause determination, under the Bank Secrecy Act of 1970 (31 U.S.C. § 1101), the Court, in addressing whether the delay in bringing the forfeiture action deprived the plaintiff of due process, also noted: The general rule, of course, is that absent an "extraordinary situation" a party cannot invoke the power of the state to seize a person’s property without a prior judicial determination that the seizure is justified. But we have previously held that such an extraordinary situation exists when the government seizes items subject to forfeiture. . . . [Calero-Toledo] clearly indicates that due process does not require federal customs officials to conduct a hearing before seizing items subject to forfeiture. Such a requirement would make customs processing entirely unworkable. The government interests found decisive in [Calero-Toledó] are equally present in this situation: the seizure serves important governmental purposes; a preseizure notice might frustrate the statutory purpose; and the seizure was made by government officials rather than self-motivated private parties. (Citations omitted.) United States v. Eight Thousand Eight Hundred & Fifty Dollars, 461 U.S. 555, 562 n.12, 76 L. Ed. 2d 143, 103 S. Ct. 2005 (1983). Outside the forfeiture context, the Court has required predeprivation evidentiary hearings under Mathews v. Eldridge, supra, in contexts where the private interest at stake was very great, see Sniadach v. Family Fin. Corp., 395 U.S. 337, 23 L. Ed. 2d 349, 89 S. Ct. 1820 (1969) (prejudgment writ garnishing wages); or, most recently, where the plaintiff's interest was minimal compared with the great risk of erroneous deprivation to the defendant's property interest, see Connecticut v. Doehr,_U.S._, 115 L. Ed. 2d 1, 111 S. Ct. 2105 (1991). In Connecticut v. Doehr, supra, plaintiff DiGiovanni, who had filed an action based upon an alleged assault, obtained an ex parte prejudgment writ of attachment on all of the defendant's real property, including his home. In support of the writ, DiGiovanni submitted a brief affidavit stating that he was assaulted by the defendant. The Court, after analyzing the Mathews factors, held the risk of erroneous deprivation was too great to postpone an evidentiary hearing given the minimal interests of the plaintiff in ensuring the availability of the assets to satisfy his judgment if he prevailed. The risk of erroneous deprivation was great because the writ of attachment was based solely upon a "one-sided, self-serving, and conclusory [complaint and affidavit]." Doehr, 111 S. Ct. at 2114. The plaintiff's interest was minimal because there was no allegation that Doehr [defendant] was about to transfer or encumber his real estate or take any other action during the pendency of the action that would render his real estate unavailable to satisfy a judgment. . . . Doehr, 111 S. Ct. at 2115. Therefore, the Court held that, given the interests involved, absent some countervailing consideration or other exigent circumstance, due process required an evidentiary preattachment hearing. The Court has upheld deprivations of property without a full evidentiary hearing prior to the deprivation in contexts where the governmental interest was great compared with the impact on the private interest. See Fuentes, 407 U.S at 92 (no predeprivation hearing required "to collect the internal revenue of the United States, to meet the needs of a national war effort, to protect against the economic disaster of a bank failure, and to protect the public from misbranded drugs and contaminated food." (Footnotes omitted.)). Mitchell v. W.T. Grant Co., 416 U.S. 600, 616-18, 40 L. Ed. 2d 406, 94 S. Ct. 1895 (1974) (sequestration of personal property on ex parte application of creditor allowed where initial hardship to debtor is low, seller has a strong interest, and process proceeds under judicial supervision and prevailing party is protected against loss); Mathews v. Eldridge, supra (private interest in disability payments is less than in wages, termination decision based upon standard, routine, unbiased medical reports, and fiscal and administrative burden of pretermination evidentiary hearings out of proportion to benefits). In summary, the Court has stated that with no extraordinary circumstances, some type of hearing prior to a deprivation is required by due process. See Fuentes v. Shevin, supra. If there are no extraordinary circumstances, then some type of prior hearing is required and an analysis of the three factors under Mathews determines the formality and procedural requisites of the hearing. See Mathews v. Eldridge, 424 U.S. at 333-35; Boddie v. Connecticut, 401 U.S. 371, 378-79, 28 L. Ed. 2d 113, 91 S. Ct. 780 (1971). If the risk of erroneous deprivation to a property interest is great compared to the government's interest, then due process generally will require an evidentiary hearing. See Connecticut v. Doehr, supra. Otherwise, some lesser form of hearing, such as an ex parte hearing based upon probable cause, may be sufficient. While a majority of federal cases have required evidentiary hearings before the government could seize homes, see, e.g., United States v. James Daniel Good Property, 971 F.2d 1376 (9th Cir. 1992); Richmond Tenants Org., Inc. v. Kemp, 753 F. Supp. 607 (E.D. Va. 1990); United States v. Leasehold Interest in Property Located at 850 S. Maple, 743 F. Supp. 505 (E.D. Mich. 1990); United States v. Parcel I, Beginning at Stake, 731 F. Supp. 1348 (S.D. Ill. 1990), these courts all relied upon United States v. Premises & Real Property, 889 F.2d 1258 (2d Cir. 1989) (Livonia Rd.) which has, we believe, misinterpreted the interplay between Fuentes and Mathews. In Livonia Rd., there was an ex parte hearing prior to the seizure. The adequacy of this procedure should have proceeded solely under the Mathews criteria. However, the court misapplied Fuentes and Mathews by "assessing the strength of the government's interest" in terms of whether the "case presented exigent circumstances warranting the postponement of notice and the opportunity for an adversarial hearing." (Italics ours.) Livonia Rd., 889 F.2d at 1265. Livonia Rd. has no citations after this statement and for good reason. First, Fuentes and Boddie, which Fuentes cites, stand only for the proposition that some type of hearing, not a full evidentiary hearing, is required before a deprivation. See Fuentes, 407 U.S. at 90; Boddie, 401 U.S. at 378-79. Second, consideration of the strength of the government's interest under Mathews is not assessed in terms of whether exigent circumstances are present. The existence of exigent circumstances is only relevant if no prior hearing of any type was used. Livonia Rd. and subsequent cases are relevant, however, in that they help define the strength of the private interest in a home. The "expectation of privacy and freedom from governmental intrusion in the home merits special constitutional protection." Livonia Rd., 889 F.2d at 1264 (citing United States v. Karo, 468 U.S. 705, 714, 82 L. Ed. 2d 530, 104 S. Ct. 3296 (1984)). Courts have upheld seizures of homes without prior evidentiary hearings. See United States v. Tax Lot 1500, 861 F.2d 232 (9th Cir. 1988); United States v. 26.075 Acres, 687 F. Supp. 1005, 1012 (E.D.N.C. 1988) (Swift Creek), aff'd in part, rev'd in part on other grounds sub nom. United States v. Santoro, 866 F.2d 1538 (4th Cir. 1989); United States v. Single Family Residence, 803 F.2d 625 (11th Cir. 1986). The Swift Creek court, citing Calero-Toledo, upheld the seizure of real property, including a residence, subject to forfeiture after issuance of a warrant of arrest in rem based upon a determination of probable cause. Swift Creek, 687 F. Supp. at 1012. The Swift Creek court did not engage in an analysis of the Mathews factors, but simply stated that the seizure of property subject to forfeiture is, in itself, an extraordinary situation under Fuentes sufficient to postpone notice and a hearing. See Swift Creek, 687 F. Supp. at 1012; see also Single Family Residence, 803 F.2d at 632. While there is language in Calero-Toledo which suggests this position, no hearing of any type was held prior to the seizure and the court opinion goes on to enumerate the particular considerations present which justified the lack of a hearing. CaleroToledo, 416 U.S. at 680. The Tax Lot court upheld the seizure of a home based upon an ex parte finding of probable cause. See United States v. Tax Lot 1500, supra. The Tax Lot court held that prior ex parte judicial review was sufficient to satisfy due process, but did not analyze the Mathews factors. Tax Lot, 861 F.2d at 236. In nonhome contexts, courts have upheld seizures of real property on ex parte determinations of probable cause. See United States v. 141st St. Corp., 911 F.2d 870 (2d Cir. 1990) (apartment building); United States v. All Right, Title & Interest in Real Property, 730 F. Supp. 1265 (S.D.N.Y. 1990) (16 Clinton St.) (building); United States v. Parcel of Real Property, 636 F. Supp. 142 (N.D. Ill. 1986) (building); United States v. Certain Real Estate Property, 612 F. Supp. 1492, 1497 (S.D. Fla. 1985) (resort, boat company, and restaurant). The 141st St. and 16 Clinton St. courts, however, following Livonia, erroneously required a showing of. exigent circumstances before upholding the seizure based upon an ex parte warrant. 141st St., 911 F.2d at 875; 16 Clinton St., 730 F. Supp. at 1271-72. The court in Parcel of Real Property relied on Certain Real Estate Property in holding that ex parte preseizure judicial review meets minimal standards of due process. Parcel of Real Property, 636 F. Supp. at 145-46. We concur with Certain Real Estate Property which provides an accurate interpretation and application of Mathews and Fuentes. Fuentes — and Calero-Toledo for that matter — make clear that some sort of preseizure hearing is necessary as long as there is a reasonable likelihood that the res is not going to disappear. The ex parte nature of the preseizure hearing does not violate the teachings of Fuentes and its progeny. . . . (Italics ours.) Certain Real Estate Property, 612 F. Supp. at 1496-97. The Wilson defendants and amicus do not address the application of the Mathews factors because they have erroneously relied upon Fuentes as requiring exigent circumstances to justify any process less than a full evidentiary hearing prior to the deprivation. However, Fuentes is not applicable because defendants in both cases were afforded a hearing prior to the deprivation, although not a full evidentiary hearing. Consequently, the issue of whether the ex parte hearings met due process standards under the circumstances of these cases is properly analyzed under Mathews. First, in order to preserve the constitutionality of the statute, we construe the term "seizure", as it is used in the context of seizure of real property in RCW 69.50.505, to establish only an inchoate property interest in the seizing agency. See High Tide Seafoods v. State, 106 Wn.2d 695, 698, 725 P.2d 411 (1986); United States v. Ladson, 774 F.2d 436, 439 (11th Cir. 1985). We hold that a seizure, itself, does not allow the seizing agency to remove the occupants from physical possession of the property. The effect of a seizure is to commence the forfeiture proceeding. RCW 69.50.505(c). Once the property has been seized, the seizing agency may take further action to remove the occupants or enter into an occupancy agreement only upon further order of the court following notice and an opportunity for the properly owners to be heard. Claimants are entitled to a full adversarial hearing within 90 days if they contest the seizure. RCW 69.50.505(e). At the hearing, the burden is upon the seizing agency to prove the real properly is subject to seizure. RCW 69.50.505(e). In these cases, the Wilson defendants have remained in possession of their home and the Pearson defendants have continued to collect rent. While the private interest in a home merits special constitutional protection, we find that the temporary impact on the private interest by the seizure of the home and the rental property in these cases, while significant, is less than that of a permanent or physical dispossession of the property. See Doehr, 111 S. Ct. at 2113. Second, the risk of erroneous deprivation is minimal because probable cause is based upon police affidavits after valid searches which showed that "a substantial nexus exist[ed] between the commercial production or sale of the controlled substance and the real property". RCW 69.50-.505(a)(8). The affidavits fist the equipment and amount of drugs found and the physical location and size of the operation. Thus, there is documented evidence which provides an objective basis from which to determine whether the standard in RCW 69.50.505(a)(8) has been met. When the probable cause issue concerns "uncomplicated matters that lend themselves to documentary proof", the likelihood of error is minimal. See Doehr, 111 S. Ct. at 2114 (quoting Mitchell, 416 U.S. at 609). Lastly, the government has a significant interest in seizing the property and preventing continued use of the premises for illegal activity. See Calero-Toledo v. Pearson Yacht Leasing Co., 416 U.S. 663, 40 L. Ed. 2d 452, 94 S. Ct. 2080 (1974). The Legislature has declared that forfeiture, which is commenced by seizure, provide[s] a significant deterrent to crime by removing the profit incentive of drug trafficking, and . . . providers] a revenue source that will partially defray the large costs incurred by government as a result of these crimes. . . . Laws of 1989, ch. 271, § 211, p. 1298. Thus, while the private and governmental interests are significant in this case, the risk of erroneous deprivation is slight given the documentary nature of the bases for probable cause. Therefore, the balance of interests does not create a need for a full evidentiary hearing prior to seizure. See Connecticut v. Doehr, supra. Rather, in these circumstances, an ex parte probable cause hearing is sufficient to meet minimal due process requirements. Moreover, the statute requires a full adversarial hearing with judicial review within 90 days if the claimant notifies the seizing agency in writing. RCW 69.50.505(e); RCW 34.05.419. We hold RCW 69.50.505(b) was constitutionally applied and, as construed, is facially valid. Ill We now address whether the trial court erred in granting summary judgment to Janet Pearson and denying plaintiffs' CR 56(f) motion. Janet Pearson alleged she had no knowledge and did not consent to the illegal activity on the real property and, thus, her interest may not be forfeited under RCW 69.50.505(a)(8)(i), which provides: No property may be forfeited pursuant to this subsection, to the extent of the interest of an owner, by reason of any act or omission committed or omitted without the owner's knowledge or consent. The trial court held plaintiffs had not raised a genuine issue of fact regarding Janet Pearson's consent to the illegal activity. In so holding, the trial court interpreted this section to allow owners to prohibit forfeiture of their interest in the property if they either had no knowledge or did not consent to the illegal use. Plaintiffs do not challenge the trial court's disjunctive interpretation of RCW 69.50.505(a)(8)(i). Rather, they assert acquiescence is sufficient to show consent. The trial court does not address how it defined "consent", and it is not defined in the statute. Under the federal forfeiture provision, consent has been defined as "the failure to take all reasonable steps to prevent illicit use of [the] premises once one acquires knowledge of that use". 141st St., 911 F.2d at 879 (citing Calero-Toledo, 416 U.S. at 689); United States v. Sixty (60) Acres, 727 F. Supp. 1414 (N.D. Ala. 1990). This definition was used because when combined with [the disjunctive] construction of the phrase "knowledge or consent," it provides a balance between the two congressional purposes of making drug trafficking prohibitively expensive for the property owner and preserving the property of an innocent owner. A claimant with knowledge of the illegal use to which his property is put may defend on the basis of lack of consent, but consent in this situation must be something more than a state of mind. The illicit sale and use of drugs is taking an ever increasing toll on our nation. These activities affect almost every aspect of modem existence . . . Given the present circumstances, defining "consent" in section [21 U.S.C. §] 881(a)(7) as the failure to take all reasonable steps to prevent illicit use of premises once one acquires knowledge of that use is entirely appropriate. (Footnote omitted.) 141st St., 911 F.2d at 879. Likewise, we define consent in RCW 69.50.505(a)(8)(i) similarly to balance the two policies enunciated by the Washington Legislature: to remove the profit incentive from drug trafficking and to protect innocent owners. Defendants assert we may uphold the trial court's summary judgment ruling by holding that RCW 69.50.505(d) requires innocent owners to participate in the illegal activity in order for their interest to be forfeitable. That provision states: The community property interest in real property of a person whose spouse committed a violation giving rise to seizure of the real property may not be forfeited if the person did not participate in the violation. The trial court ruled the defense of lack of participation applied only to default situations in which the law enforcement agency is attempting to forfeit the community property interest in real property of a person whose spouse committed a violation giving rise to the seizure and who has failed to file a claim within the time period set forth in the statute. We decline to rule on the participation issue because defendants failed to cross-appeal this ruling. See Sunland Invs., Inc. v. Graham, 54 Wn. App. 361, 364, 773 P.2d 873 (1989). Under the federal statute, the claimant has the burden of proving a lack of consent. Here, while the State carries the burden of proving real property is subject to forfeiture, the State is not required to "negate any exemption or exception". RCW 69.50.506(a). Rather, "[t]he burden of proof of any exemption or exception is upon the person claiming it." RCW 69.50.506(a). Therefore, the State carries the initial burden of producing evidence to show knowledge and consent, but the claimant carries the burden of persuasion of showing a lack of knowledge and consent. The issue then is whether the State presented evidence which raised a genuine issue regarding Janet Pearson's knowledge or consent. We must consider all the facts and reasonable inferences therefrom in the light most favorable to the nonmoving party. Johnson v. Schafer, 110 Wn.2d 546, 756 P.2d 134 (1988). Plaintiffs contend they were attempting to obtain, through further discovery, the following facts necessary to overcome summary judgment: (1) Janet Pearson lived in the house when the house was remodeled, including the installation of the trapdoor; (2) Janet Pearson shared equally in the control of the family finances; and (3) a confidential informant had information that marijuana was being dried and packaged in Janet Pearson's current residence. The only fact before the trial court was Janet Pearson's denial of knowledge or con sent. Consequently, without the above facts, plaintiffs could not defeat summary judgment. Plaintiffs contend, however, that the trial court erred in denying their CR 56(f) motion for a continuance to allow further discovery. CR 56(f) provides: Should it appear from the affidavits of a party opposing the [summary judgment] motion that he cannot, for reasons stated, present by affidavit facts essential to justify his opposition, the court may refuse the application for judgment or may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had or may make such other order as is just. A court's denial of a CR 56(f) motion is reviewed under an abuse of discretion standard. Coggle v. Snow, 56 Wn. App. 499, 504, 784 P.2d 554 (1990). A court may deny a motion for a continuance when (1) the requesting party does not offer a good reason for the delay in obtaining the desired evidence; (2) the requesting party does not state what evidence would be established through the additional discovery; or (3) the desired evidence will not raise a genuine issue of material fact. Turner v. Kohler, 54 Wn. App. 688, 693, 775 P.2d 474 (1989). The affidavit of Roselyn Marcus, the assistant attorney general handling the case, states: 13. Plaintiff had several theories regarding this case and the facts necessary to prove the issues at hand. Financial information is needed to show either that the community benefited from the marijuana grow operation or that Mrs. Pearson knew or participated in this operation by her acquiescence and benefit of its monetary gains. However, plaintiff did not begin to pursue formal discovery pursuant to the civil rules based on the belief that Mr. Bianchi had agreed to furnish documents in good faith. 15. On June 18, 1990,1 met with Mr. Driano, Officer Smith and Chief Webb. It was then that I learned that the confidential informant had stated that Mr. Pearson would dry and package the marijuana at the residence shared with Mrs. Pearson. 18. There was substantial reason to believe Mrs. Pearson had knowledge based on the informant's information and the limited financial information in my possession. So, upon further thought, I prepared Plaintiff's First Set of Interrogatories and Requests for Production of Documents. These were sent to defendant's respective attorneys on June 27, 1990 . . . This discovery request was needed since Mr. Bianchi never provided the information and plaintiff had no other way to obtain the information needed to develop the facts necessary to show financial benefit to the community and knowledge of consent of Mrs. Pearson. 19. On June 28,1990,1 was served with defendant's motion. Because of this, I have not been provided with answers to the discovery requests. Clerk's Papers, at 69-71. In a separate affidavit, Ms. Marcus states that the location of the confidential informant was obtained on August 9, 1990, but the informant would not answer questions without prior authorization from his attorney. The trial court should have allowed plaintiffs to complete discovery The necessary information was not obtained because defendants' counsel did not provide the requested documents when asked informally nor when served with requests for production. In addition, the location of a confidential informant was unknown until August 9, 1990. Plaintiffs set forth the evidence they sought to establish through further discovery: (1) Mrs. Pearson was residing in the house when the renovations were being made; (2) Mrs. Pearson had joint control over the finances; and (3) the marijuana was being packaged and dried in her current residence. These facts and the reasonable inferences therefrom viewed in the light most favorable to the plaintiffs would raise genuine issues of fact regarding Mrs. Pearson's knowledge of and her acquiescence or consent to the illegal conduct. Therefore, the trial court abused its discretion in not granting the continuance. See Lewis v. Bell, 45 Wn. App. 192, 196, 724 P.2d 425 (1986). IV Plaintiffs also contend the trial court erred in awarding Mrs. Pearson attorney fees pursuant to RCW 4.84-.185 upon a finding that the action against her was frivolous and advanced without reasonable cause. We find the issues presented in the action against Janet Pearson raised meritorious issues under the statute regarding the innocent owner provision. The trial court abused its discretion in awarding attorney fees. See Moorman v. Walker, 54 Wn. App. 461, 466, 773 P.2d 887 (1989). V Lastly, plaintiffs, in their statement of grounds for direct review appealed whether the trial court properly applied the manifest injustice standard for determining whether a forced sale of Janet Pearson's community property interest could take place upon forfeiture of Mr. Pearson's interest. However, the plaintiffs did not raise the issue in their assignments of error or argue the issue in their briefs. Therefore, we do not consider this issue on appeal. See Howell v. Spokane & Inland Empire Blood Bank, 114 Wn.2d 42, 785 P.2d 815 (1990); Transamerica Ins. Group v. United Pac. Ins. Co., 92 Wn.2d 21, 593 P.2d 156 (1979). In conclusion, we reverse the trial court in Tellevik v. 9209 218th N.E. and hold that real property subject to seizure under RCW 69.50.505(a)(8) does not lose this status by intervention of law enforcement. We reverse both trial courts and hold that RCW 69.50.505(b) is not unconstitutional on its face or as applied under the due process clause of the United States Constitution. In Tellevik v. 31641 West Rutherford Sreet, we reverse the trial court's grant of summary judgment and award of attorney fees in favor of Janet Pearson, and its denial of plaintiffs' CR 56(f) motion. Plaintiffs in Tellevik v. 31641 West Rutherford Street should be allowed to complete discovery in their case against Janet Pearson. As to the remaining defendants, both cases are remanded for trial on the forfeitures. Dore, C.J., and Brachtenbach, Andersen, Durham, and Guy, JJ., concur.

Gose, J. The state, through its proper officers, platted the shore lands upon Lake Union, filed the plat in the office of the commissioner of public lands July 1, 1907, and offered the lands for sale according to law. The appellant, Horton, the respondent Gifford, the respondent Francies 11. Day in her own right, and the respondents Smith and Westby, as executors of the will and as devisees of the estate of B. F. Day, deceased, the first two acting severally and the last three acting jointly, claimed the preference right to purchase lots 23, 24, and 25, of block 96, Lake Union shore lands, as platted. The respondent T. de l’Archerie claimed the preference right to purchase lot 23; and the respondent Simonsen claimed the preference right to purchase lots 24 and 25. The several parties filed their applications to purchase according to their respective claims. The several applications were made to the board of state land commissioners, in which the power to sell and convey shore lands is vested by law; and on the 10th day of December, 1907, the board awarded the right to purchase lot 23 to respondent de l’Archerie, and awarded the right to purchase lots 24 and 25 to the respondent Simonsen. The appellant, Horton, and the respondent Gifford appealed from the award to the superior court of King county, and upon stipulation and an order of the court such appeals were consolidated. The case was tried to the court upon a stipulation of facts and certain plats, and the award of the board was affirmed. This appeal was taken by the appellant, Horton, from the judgment affirming the award. Gifford did not appeal. The facts stipulated in substance are, that on June 22, 1889, one B. F. Day and Francies R. Day, his wife, owned certain community property which they on that day platted into lots, blocks, streets and alleys, as B. F. Day’s Eldorado Addition to the city of Seattle, dedicated the streets and alleys to the public use, and filed the plat for record; that the plat was duly accepted by the city; that the dedicators at that time owned the platted land to the line of ordinary high water of Lake Union; that on the easterly side of block 15, Day and wife dedicated a street eighty feet in width, named Lake Union avenue; that the line of ordinary high water on the lake is east of the center line of the street; that lots 23, 24, and 25 in block 96 of Lake Union shore lands, as platted by the state board of land commissioners, are identical with lots 4, 5, and 6, in block 16, as shown upon the Day plat, and are directly in front of lots 16, 17, and 20 of block 15, as shown in the plat of dedication; that on August 24, 1895, Day and wife, being then the owners, conveyed to one Smith lots 1 to 26 in block 15, together with the tenements, hereditaments, and appurtenances thereunto belonging and appertaining, with covenants of seizin free from incumbrances, by a deed of general warranty and by a reference to the plat, which deed was recorded August 31 following; that respondent de l’Archerie, since September 11, 1906, has been the owner in fee of lot 16 in block 15, through mesne conveyances from Smith; that.the respondent Simonsen, since July 1, 1907, has been the owner in fee of lots 17 and 20 of block 15, through mesne conveyances from Smith; that the title deeds of both of the respondents contain like recitals, grants, and covenants as the deed from Day and wife to Smith. It was further stipulated that on the 19th day of October, 1895, a community debt judgment was entered against the Days, and that B. F. Day’s one-half interest in lots 1 to 8 inclusive in block 16 was sold on the 23d day of May, 1901, on an execution issued upon such judgment; that on the 13th day of May, 1899, Francies R. Day was adjudged a voluntary bankrupt, and on the 28th day of February, 1900, lots 1 to 8 inclusive, block 16, were sold by the trustee in bankruptcy ; that by mesne conveyances the respondent Gifford owns whatever title passed to the purchaser at the execution and bankruptcy sales; that from and after the filing of the Day plat, lots 4, 5, and 6, block 16, were assessed annually for county, state, and municipal purposes, and that the taxes were paid by the Days until the year 1892; that the tax upon the lots last described for the year 1892 went delinquent, and a certificate of delinquency was issued to King county, which was foreclosed, and a decree entered thereon on the 29th day of September, 1902, directing a sale of the lots, and that they were sold thereon on the 15th day of November, 1902; that the appellant, Horton, through mesne conveyances, is the owner of whatever title passed at such sale, and was such owner before filing his application to purchase; that taxes have been assessed annually against these lots from 1890 to 1907 inclusive, and paid by the appellant and his grantors. It was further stipulated that B. F. Day died testate and childless on the 24th day of March, 1904, leaving him surviving his widow, Francies R. Day; that by his last will he devised his estate in equal shares to Everett Smith and Mar-thine Westby; that the will was admitted to probate on the 4th day of October, 1904; that on October 8, 1907, the widow and Everett Smith, devisee, quitclaimed to appellant lots 23, 24, and 25, block 96, and lots 4, 5, and 6, block 16, together with the riparian, littoral and water front rights appertaining to the upland upon which they abut, with the preference right to purchase them from the state. In the stipulation the regularity of the execution and bankruptcy sales are admitted by the respondents; but they do not admit that they passed any title. The appellant denies that any title passed under either of said sales, and the respondents deny that any title passed to the appellant under either the tax deed or the Day and Everett Smith deed. We have seen that Day and wife owned all the platted land to the line of ordinary high water of Lake Union, and that the shore line is east of the center of the avenue as it was dedicated. While the dedicators platted all the land they owned, they did not own all the land they platted. In front of lots 16, 17, and 20, block 15, and east of the avenue, they platted shore lands and designated them as lots 4, 5, and 6, block 16, which we have seen are identical with lots 23, 24, and 25, block 96, Lake Union shore lands. The appellant assigns numerous errors, but they all revolve about his one claim that he is the owner of the upland, and therefore entitled to the preference right to purchase the shore lands upon which they front. The title to the shore lands on Lake Union at the time the plat of dedication was filed, it being navigable, was in the United States, and since the adoption of the constitution in November, 1889, the title has been in the state. It follows, therefore, that the platting and the assertion of title by Day thereto was of no legal force, and that the tax sale under which the appellant claims did not invest him with any title, nor did the execution or bankruptcy sale convey any title to the respondent Gifford. Seattle & Montana R. Co. v. Carraher, 21 Wash. 491, 58 Pac. 570; Eisenbach v. Hatfield, 2 Wash. 236, 26 Pac. 539, 12 L. R. A. 632; Brace & Hergert Mill Co. v. State, 49 Wash. 326, 95 Pac. 278; Grays Harbor Boom Co. v. Lownsdale, ante p. 83, 102 Pac. 1041; Blakslee Mfg. Co. v. Blakslee’s Sons Iron-Works, 129 N. Y. 155, 29 N. E. 2. The plat of dedication executed by Day and wife recited: “That we have this day platted the same as JB. F. Day’s Eldorado, and we do hereby dedicate to the use of the public forever all the streets and drives shown on said plat, excepting and reserving, however, all the water, riparian, and littoral rights for our own use and benefit.” The appellant urges that the exception clause in the dedication, together with the platting of the shore lands" lying east of the street, indicate an intention upon the part of Day and wife to reserve the fee to the east half of Lake avenue, that through his deed from the wife and devisee he has succeeded to that right, that he is the owner of a thread or narrow strip of upland lying between the center of the avenue and the shore line, wholly within the street, and that he is therefore the upland owner, under the provisions of Laws 1897, pages 250, 252, § § 45, 46, and entitled to the preference right to purchase the shore lands. It is contended by the respondents that, when Day and wife conveyed the upland fronting on the avenue, the avenue being the boundary of their land, by a deed of general warranty without reservation, the conveyance carried with it the title to the fee in the entire street, subject only to an easement in the public, and that as owners of lots 16, 17, and 20, in block 15, which abut on the street, they are the upland owners and entitled to the preference right to purchase the shore lands lying in front of their lots. In the absence of a governing statute or a reservation in the grant, the general rule is that the owner of land on each side of a highway or street owns the fee to the center of the road or street, subject only to the easement in th public. This rule is too well settled to require the citation of authority. Proceeding from the premise that the reservation in the plat of dedication will not be extended by an equitable construction (Strunk v. Pritchett, 27 Ind. App. 582, 61 N. E. 973; Elliott, Roads & Streets [2d ed.], par. 119) we will try to arrive at the intention of the Days by an examination of the language employed, and the surrounding circumstances. They reserved not the fee in whole or any part of the street, which they could have done by apt words in the dedication, or by a reservation in the deed to Smith, but they reserved “all riparian and littoral rights.” We have seen that in this state they had no such rights. In addition to the reservation clause, they platted the shore lands the title to which, as we have seen, was then in the United States. We are, in effect, called upon to declare that the reservation in, and an assertion of title to, that which they did not own in dicated an intention on their part to reserve a different property which they did own. The true rule is that, under the admitted facts, the grantee of land fronting upon the street takes the fee to the entire street, unless the terms or circumstances of the grant indicate a limitation of its extent to the center of the street. The applicable part of Laws 1897, page 250, § 45, is as follows: “The owner or owners of lands abutting or fronting upon tide or shore lands of the first class shall have the right for sixty (60) days following the filing of the final appraisal of the tide and shore lands with the commissioner of public lands to apply for the purchase of all or any part of the tide or shore lands in front of the lands so owned.” The appellant urges that this right is given in lieu of riparian rights. There is nothing in the language of the statute indicating such an intention. So far as the statute discloses, it is a mere gratuity given to the upland owner. In commenting on the rule of construction where the owner lays out a street along the margin of his land, in Taylor v. Armstrong, 24 Ark. 102, at page 107, the court said: “But if a highway be laid off entirely upon the land of A, l’unning along the margin of his tract, and he afterwards conveys the land, the fee in the whole of the soil of the highway vests in his grantee. . . . The same rules are applicable to streets in towns and cities.” The same rule is succinctly stated in the syllabi to Succession of Delachaise v. Maginnis, 44 La. Ann. 1043, 11 South. 715, in the following words: “A party who sells the entire estate owned by him up to the line of a public road, or street bordering the river, and beyond which no property susceptible of private ownership exists at date of sale, retains no estate to which the accessory right to future alluvion could attach.” And: “The intervention of a public road or street does not prevent the owner of the estate adjacent thereto from being considered as the front or riparian proprietor, when nothing susceptible of private ownership exists between the road or street and the river.” Treating this question in Haberman v. Baker, 128 N. Y. 253, 28 N. E. 370, 13 L. R. A. 611, at page 259, it is said: “Where the highway has been, as in the present case, wholly made from and upon the margin of the grantor’s land, his subsequent grant of the adjoining land should be deemed to comprehend the fee in the whole road-bed; upon the same principle that exists for giving the fee to the center in the other cases. The grantor should be presumed to have intended by his conveyance the full investiture of the grantee with all appurtenant property rights in the highway.” In In re Robbins, 34 Minn. 99, 24 N. W. 356, 57 Am. Rep. 40, it was held that, where a street is laid out wholly on the owner’s own land and on the margin of his tract so that he owns nothing beyond, the whole of the street opposite a lot bounded on the street passes to the grantee of such lot. In Johnson v. Grenell, 188 N. Y. 407, 81 N. E. 161, at page 410, in commenting on the legal effect of a grant of a lot upon a street along the boundary of a grantor’s property, the court said: “The grantees of Mrs. Grenell, in this case, had the right to rely upon the application of the rule that a grantor will not be supposed to have reserved the title to the road bounding a grant of lands, if its control ceased to be of importance to him by reason of his having parted with all of his interest in the lands adjoining it.” The court further stated that the control of the street had ceased to be of importance to the grantor after she had conveyed the adjoining land, but that it was important and essential to the grantee for reasons connected with the full enjoyment of the property. The question also received consideration in Bissell v. New York Cent. R. Co., 23 N. Y. 61, 64, where it is said: “The idea of an intention in a grantor to withhold his interest in a highway to the middle of the street, after parting with all his right and title to the adjoining land ought never to be presumed; and all the cases hold that, in such a case, it requires some declaration of such an intention in the deed to sustain such an inference.-” In Blakslee Mfg. Co. v. Blakslee’s Sons Iron-Works, supra, it was held that a party claiming under a reservation identical in meaning with the, one in controversy was not an upland owner. Grant v. Oregon R. & Nav. Co., 49 Ore. 324, 90 Pac. 178, 1099, cited by the appellant, holds that ordinarily a conveyance of land abutting upon the shore carries with it to the grantee therein all rights incident to the shore land; but, when the conveyance shows the intention of the grantor to reserve the riparian rights, they will not pass to the grantee. In Mott v. Mott, 68 N. Y. 246, also cited by the appellant, the land had been conveyed by description by metes and bounds bordering a lane, and the deed also granted the right to use the lane, and the court concluded that the fee to the lane did not pass to the grantee. Other cases cited by appellant announce the rule that, where the dedicator owns to the low water line and sells property abutting on a street, which street is bordered on one side by a navigable river, the purchaser takes title to the center of the street only. Such is City of Demopolis v. Webb, 87 Ala. 659, 6 South. 408. Gilbert v. Eldridge, 47 Minn. 210, 49 N. W. 679, 13 L. R. A. 411, holds that the platting and conveyance of land in the water beyond the shore line disassociated the riparian rights from the upland, and transferred them to the purchaser of the submerged land. This doctrine, however, recognizes the local law which made the line of low water the boundary; whereas, we have seen that in this state the line of high water is the boundary. We do not think the fact that the Days believed they owned the shore lands and riparian rights justifies a holding that they intended to reserve the fee to a bare thread of the street. Having conveyed the upland to the street which marked the boundary of their land, the presumption is that the grantee was invested with the fee to the entire street, and we do not think that the surrounding circumstances overthrow this presumption. It follows from what we have said that respondents are the upland owners, and the decree will be affirmed. Rudkin, C. J., Fullerton, Parker, Mount, and Crow, JJ., concur.

Simpson, J. This action was instituted to recover judgment against defendants upon a written instrument signed by defendant Emmett Phillips. The complaint alleged that, in consideration of the sum of $3,660, paid to W. K. Deal September 21, 1939, by plaintiff at the request of defendant Emmett Phillips, the defendants promised and agreed to repay that amount to plaintiff; that the agreement was evidenced by a writing signed by Emmett Phillips; and that the whole sum was justly due and unpaid. In their answer defendants admitted the signing of the contract, but denied that they were indebted to plaintiff. For a further and separate answer, defendants alleged that September 18, 1939, defendant Emmett Phillips, acting for the community composed of himself and wife, entered into a contract with W. K. Deal by the terms of which Deal promised to build a house for defendants at an agreed price of $3,660. It was further alleged that it was the intention of plaintiff, W. K. Deal, and defendants that defendants would not be obligated to plaintiffs until Deal had completed the building in accordance with the terms of the building contract. As a second affirmative defense, the defendants alleged that they had never received any consideration for the signing of the instrument, that the plaintiff had not paid any money to W. K. Deal on account of the execution of the instrument, and that if any money had been paid by plaintiff that such payments were made upon the reliance of plaintiff that W. K. Deal would fully perform his contract to build a house and not otherwise. In reply, plaintiff denied the allegations contained in defendants’ separate answers. The case, tried to a jury, resulted in a verdict in favor of defendants. At the appropriate time plaintiff moved in the alternative for a judgment notwithstanding the verdict or for a new trial. The court denied the motion and entered a judgment upon the verdict. Plaintiff has appealed. The assignments of error are in the refusal of the court to grant the motion for judgment notwithstanding the verdict or for a new trial, in the giving of two instructions, and in the refusal to give four proposed instructions. The facts are these: September 19, 1939, W. K. Deal, a building contractor, contracted with respondents to build a house on their farm for the sum of $3,660. Lacking funds to commence work, Deal, a customer of appellant, sought an advance of credit from J. McPherson, president of the bank. Knowing, how ever that he was already indebted to appellant, Deal offered to sign over for security his contract with respondents as well as another building contract. Agreeing to this, McPherson prepared the following “order” or agreement and directed Deal to have respondent sign it. “State Bank of Wilbur Capital $50,000.00 Surplus $10,000.00 Wilbur, Washington. J. McPherson, President E. L. Farnsworth, Vice-President G. Thompson, Cashier E. H. Oswalt, Assistant Cashier “State Bank of Wilbur, September 21, 1939 Wilbur, Wash. Gentlemen: “In consideration of Mr. W. K. Deal, contractor, giving me credit on our house building contract for the sum of Three Thousand Six Hundred Sixty ($3,660.00) Dollars, I hereby obligate myself to pay this amount to the State Bank of Wilbur, Wilbur, Washington and that I will make this $3,660.00 payment to your bank on or about upon completion about Nov. 15th (Signed) Emmett Phillips “Sep 21 1939 I hereby agree to the above order and acknowledge receipt of above amount. (Signed) W. K. Deal” The exact time when the words in longhand (“upon completion about Nov. 15th”) were written on the instrument is a fact somewhat in dispute. That they were not there when Deal received it from McPherson seems clear. McPherson testified, however, that the blank was completely filled in his office by Deal after the latter’s return from acquiring respondent’s signature. Deal, unfortunately, could not remember. Phillips, on the other hand, testified that “my best recollection is that I said I would pay for the house when it was done, and he [Deal] wrote in ‘upon completion.’ ” After McPherson prepared the instrument, Deal delivered it to respondent at his farm near Harrington for signing. Respondent testified: “A. The only conversation there was he asked me if I would sign this order he brought down there so he could draw money to buy materials for my house, and I was to pay the Wilbur State Bank when the house was completed. Q. What about the time? A. When he was to complete the house. Q. What did you say? A. I said I would pay it when the house was completed. Q. Did you have the money right then to pay for that house? A. Yes.” When Deal returned to the bank with the signed instrument, McPherson wrote the words: “I hereby agree to the above order and acknowledge receipt of above amount,” and directed Deal to sign it. On receiving the note or order, the bank placed $3,660 to Deal’s credit, deducting $1,700 to apply on a past indebtedness of $4,700. Subsequently Deal withdrew the balance. Upon receiving the credit, Deal commenced work on the house. When only a small portion had been done, the laborers threatened to file liens if they were not paid. Pursuant to McPherson’s advice, respondents paid not only the men but also the cost of the materials which Deal had furnished. As Deal later defaulted, respondents completed the house at their expense. October 5, 1940, appellant instituted this action on the written instrument signed by Emmett Phillips. Appellant contends that the instrument sued on was an unconditional promise to pay as evidenced by the typewritten part, and that the writing in longhand was a time clause, fixing a convenient time for payment rather than creating a condition precedent; that, as long as the house was completed at the time of the trial, it was immaterial who undertook the completion; and that, even though it had never been completed, the order in any event was payabale within a reasonable time. To support this contention, appellant has cited 8 Am. Jur. 27, § 281, Bills and Notes, which reads: “As a general rule, an instrument made payable upon or after the happening of a specified event, condition, or contingency is payable when the event or contingency happens or the condition is fulfilled. If the debt for which the instrument is given is an absolute liability and is due, however, and the happening of a future event is fixed upon merely as a convenient time of payment and the future event does not happen as contemplated, the instrument becomes due and payable within a reasonable time.” The authority states the proper rule, but we cannot agree that it applies to the facts of the instant case. The court submitted the case to the jury on the theory that the provisions of the instrument were ambiguous. The first question, then, is whether the agreement is ambiguous. “Ambiguity is an uncertainty of meaning in the terms of a written instrument.” First Nat. Bank v. Hancock Warehouse Co., 142 Ga. 99, 82 S. E. 481. Ambiguity is also defined to be “An uncertainty of meaning or expression used in a written instrument; wanting clearness or definiteness; difficult to comprehend or distinguish; of doubtful import.” San Antonio Life Ins. Co. v. Griffith, (Tex. Civ. App.) 185 S. W. 335. Obviously there was a patent ambiguity contained in the words “upon completion about Nov. 15th.” It is impossible to ascertain from the written instrument whether or not its signer, Emmett Phillips, was responsible for the completion of the house or whether it should have been completed by the contractor. It is clear that the statement added below respondent’s signature indicated that the instrument was not considered as an unconditional promise to pay at a designated time but was only an order to pay. It indicated a continued responsibility on the part of Deal to build a house for respondent. The duty of courts in relation to trials having to do with written instruments is well expressed in Durand v. Heney, 33 Wash. 38, 73 Pac. 775, in which this court stated: “It is conceded that the general rule is that the construction of written instruments is a question of law for the courts. We think it may also be conceded that there are certain well defined exceptions to this rule— as, where the identity of the subject-matter of a,document, or its construction, depends upon collateral facts or extrinsic circumstances, the inferences from such facts, when they are proven, should be drawn by the jury.” See, also, an annotation on this subject in 65 A. L. R. 648. In this case the contract was prepared by the officials of appellant bank and the ambiguity contained therein must be interpreted against it. Camp v. Carey, 152 Wash. 480, 278 Pac. 183; Fitzpatrick v. Bradshaw, 171 Wash. 335, 17 P. (2d) 894; Foss v. Golden Rule Bakery, 184 Wash. 265, 51 P. (2d) 405; Stephenson v. Kenworthy Grain & Milling Co., 186 Wash. 114, 56 P. (2d) 1301. Furthermore, after the instrument was prepared, appellant requested Deal to deliver it to respondents, explain its purpose, and acquire Emmett Phillips’ signature. In so doing, Deal acted in behalf of the bank. Thus, appellant was bound by any representations made to respondents as well as Deal’s writing of the disputed phrase, which McPherson testified was done under his direction and in his presence. We hold, therefore, that the contract or agreement was ambiguous, that the court properly allowed the introduction of oral testimony to explain its meaning, and that the jury was justified in finding, from all the facts and the surrounding circumstances, that the amount specified in the order was not to be paid to appellant until such time as respondents’ house was completed by W. K. Deal. Instructions Nos. 7 and 8, of which appellant complains, stated: No. 7. “If you find by a preponderance of the evidence that the document, plaintiff’s exhibit No. 1, was prepared by or under the direction of the plaintiff, then you should give the language used in that instrument such a construction as will be liberal and more favorable t,o the defendants. The law is that any uncertain or ambiguous writing must be interpreted more strictly against the party who prepared it. No. 8. “If you believe, from a preponderance of the evidence, that the defendants did, on or about September 21, 1939, promise and agree to pay to the State Bank of Wilbur the sum of $3,660.00, on or about November 15, 1939, or a reasonable time thereafter, whether the contract of constructing the Phillips house was completed by W. K. Deal or not, then your verdict should be for the plaintiff. If on the other hand, you believe that it was not agreed or intended by the parties that this sum or any part thereof should be paid by the defendants to the plaintiff until such time as the house construction contract between the defendants and W. K. Deal should have been completed by Mr. Deal, then your verdict should be for the defendants. “And in this connection I instruct you that you are to take into consideration all of the words and phrases included in this agreement and consider them as a whole, and give to the words, if you can, their ordinary and popularly accepted meaning. In addition to this, you are to take into consideration all of the facts and circumstances leading up to and surrounding the execution of this agreement, the relation and condition of the parties, the apparent purpose of making the agreement, and, in short, place yourselves in the position of these parties in order that you may determine what was intended by them at the time they entered into this agreement.” We are unable to see any error in the giving of these instructions. They thoroughly protected the theory advanced by both appellant and respondents. They properly stated the law and commanded the jury to apply it to the facts presented by the evidence. The proposed instructions presented by appellant and denied by the court were numbered 1, 2, 3, and 4. No. 1 was based upon the contention that the words “upon completion about Nov. 15th” simply fixed the time of payment. No. 2 was to the effect that appellant, as a banking corporation, had no right to enter into any contract guaranteeing the performance of the building contract. No. 3 stated that, if the jury found that $3,660, mentioned in the contract, was passed to the credit of Deal and that if the provision written in longhand was for the purpose of fixing a convenient time for its payment, the verdict should be for appellant. No. 4 was one for a verdict in favor of appellant. Proposed instructions Nos. 1 and 3 were in fact included in the instructions given by the court. Proposed instructions Nos. 2 and 4 were not justified by the facts. Instructions given by the court to a jury must be construed as a whole, and if, when so construed, they properly present the issues and state the law, they are sufficient. We have carefully read all of the instructions given and conclude that they properly advised the jury as to the issues and the law and that the rights of each side were fully protected. Finding no error, the judgment is affirmed. Robinson, C. J., Beals, Jeffers, and Blake, JJ., concur.

Horowitz, J. Plaintiffs appeal summary judgments of dismissal of four consolidated actions seeking relief against King County for negligent injury because of untimely compliance with the claim for damages statute RCW 36.45.030. We hold the statute violative of equal protection as later discussed. On December 28, 1971, Russell P. Fehr, a minor, was seriously injured as the result of an automobile-train collision at the intersection of 259th Street and the Burlington Northern, Inc., railway tracks located in the City of Kent, King County, Washington. On April 5, 1972, Louise Kalaluhi, mother of Russell Fehr, filed a claim for damages with King County, alleging negligence on the part of the County for failure to properly sign, clear, and maintain the roadway, abutting property, and railway crossing. The claim was rejected by letter dated May 23,1972. On January 9, 1974, a complaint against King County, the State of Washington, Burlington Northern, Inc., and Smith Brothers Heating Service for personal injuries to Russell Fehr was filed by Paula Louise Smail, in her representative capacity as guardian ad litem for the child. On the same date Louise Kalaluhi filed a complaint for injury to the parent-child relationship. The two cases were subsequently consolidated for trial. On January 18, 1972, a second automobile-train collision occurred at the same location, this time resulting in the death of Pamela Jenkins and serious injuries to her son, Isaac Jenkins. A claim for damages was filed with King County on May 5, 1972, by Thomas Jenkins, husband of Pamela and father of Isaac, also alleging negligence on the part of the County in failing to properly sign, clear, and maintain the roadway, abutting property, and railway crossing where the collision occurred. This claim was also rejected by letter dated May 23,1972. On October 19, 1973, Thomas Jenkins, in his capacity as personal representative of the estate of Pamela Jenkins, filed a complaint for wrongful death against King County, the State of Washington, City of Kent, Burlington Northern, Inc., Allied Salvage, and two other John Does. He filed a second complaint for injury to the parent-child relationship in his own behalf on the same date. These two cases were also consolidated for trial. King County moved for summary judgment in each of the four cases to dismiss the respective complaints against the County on the ground all four actions were not commenced within the time period provided for in RCW 36.45.030. At the time that statute read as follows: No action shall be maintained on any claim for damages until it has been presented to the board of county commissioners and sixty days have elapsed after such presentation, but such action must he commenced within three months after the sixty days have elapsed. (Italics ours.) The four complaints not having been filed within the time period prescribed, the trial court granted the motions and entered summary judgments dismissing the four complaints against the County. Plaintiffs appeal. Plaintiffs contend the trial court erred in dismissing their complaints because RCW 4.96, not RCW 36.45.030, governs the commencement of tort actions against counties. RCW 4.96.010 provides: All political subdivisions, municipal corporations, and quasi municipal corporations of the state, whether acting in a governmental or proprietary capacity, shall be liable for damages arising out of their tortious conduct, or the tortious conduct of their officers, agents or employees to the same extent as if they were a private person or corporation: Provided, That the filing within the time allowed by law of any claim required shall be a condition precedent to the maintaining of any action. The laws specifying the content for such claims shall be liberally construed so that substantial compliance therewith will be deemed satisfactory. Plaintiffs cite that statute as evidencing legislative intention to establish a uniform scheme of governmental tort liability. Plaintiffs accordingly contend RCW 4.96 impliedly repealed RCW 36.45.030 insofar as it applied to tort actions against counties, leaving the latter statute still applicable to other actions against counties. We agree with the respondent, however, that RCW 36.45.030 clearly controls the commencement of actions against counties, including tort' actions, by its own terms and by the terms of RCW 4.96.020, which provides in part:' (1) Chapter 35.31 RCW shall apply to claims against cities and towns, and chapter 36.45 RCW shall apply to claims against counties. (2) The provisions of this subsection shall not apply to claims against cities and towns or counties but shall apply to claims against all other political subdivisions, municipal corporations, and quasi municipal corporations. We also agree with respondent RCW 4.96 does not meet the requirements of repeal by implication. Repeals by implication are not favored. Tardiff v. Shoreline School Dist., 68 Wn.2d 164, 411 P.2d 889 (1966). As stated in State ex rel. Reed v. Spanaway Water Dist., 38 Wn.2d 393, 397, 229 P.2d 532 (1951): The general .rule of statutory interpretation respecting implied repeals, as previously stated, provides that, in the absence of specific repealing language, a prior act is not repealed by the enactment of a later act relating to the same matter. The exception to the general rule permits a repeal by implication if the later act: 1. Covers the entire subject matter of the earlier legislation; 2. Is complete within itself; 3. Is evidently intended to supersede the prior legislation on the subject; or 4. If the two acts are so clearly inconsistent with and repugnant to each other that they cannot by fair and. reasonable construction be reconciled and both be given effect. First, RCW 4.96, applying only to tort actions, does not cover the entire subject matter of RCW 36.45.030, which applies to all actions against counties. Second, in view of RCW 4.96.020(1) quoted above, RCW 4.96 was expressly not intended to repeal RCW 36.45.030. Third, RCW 4.96 and RCW 36.45.030 are not clearly inconsistent and repugnant to each other. They can fairly be construed to give effect to both; namely, RCW 36.45.030 applies to all actions against counties, including those sounding in tort, and RCW 4.96 applies to tort actions against all other political subdivisions, municipal corporations, and quasi municipal corporations, exclusive of cities and towns. RCW 4.96.020; RCW 35.31. Plaintiffs also contend RCW 4.96 should be held to control over RCW 36.45.030 on the question of commencement of tort actions against counties because RCW 4.96 is a special statute applying only to claims against governmental entities sounding in tort, whereas RCW 36.45.030 is a general statute applying to all claims and actions against counties, and, as stated in Mercer Island v. Walker, 76 Wn.2d 607, 613, 458 P.2d 274 (1969): [Wjhere there is a conflict between a general and a special statute, covering the subject in a more definite and minute way, the specific statute will prevail. However, respondent points out that RCW 36.45.030 can easily be read to be the more specific of the two statutes since it applies only to counties, whereas RCW 4.96 is a general.statute applying to “[a] 11 political subdivisions, municipal corporations, and quasi municipal corporations of the state . . .” RCW 4.96.010. Therefore, RCW 36.45.030 would control. Mercer Island v. Walker, supra. Plaintiffs next contend that, if RCW 36.45.030 controls the commencement of tort actions against counties, the 3-month limitation on the commencement of actions provided for in that, statute constitutes an invidious and. arbitrary discrimination against victims of the tortious conduct of counties in violation .of the guarantee of “equal protection of the laws” contained in Const. art. 1, § 12 and U.S. Const. amend. 14. Plaintiffs contend this is so because victims of the tortious conduct of all other governmental entities in the state, including the State itself, have 3 years from the date of the occurrence to commence their actions under the general statute of limitations relating to torts (RCW 4.16.080 (2)). RCW 4.92.110; RCW 4.96.020; RCW 35.31. For the reasons discussed below, plaintiffs’ constitutional attack must be sustained. Const. art. 1, § 12 provides: No law shall be passed granting to any citizen, class of citizens, or corporation other than municipal, privileges- or immunities which upon the same terms shall not equally belong to all citizens, or corporations. U.S. Const. amend. 14 provides that no state may “deny to any person within its jurisdiction the equal protection of the laws.” This principle of equal protection, guaranteed by both state and federal constitutions, “does not require that things different in fact be treated in law as though they were the same,” but “it does require; in its concern for equality, that those who are similarly situated be similarly treated.” Tussman & tenBroek, The Equal Protection of the Laws, 37 Calif. L. Rev. 341, 344 (1949); see also, Note, Developments in the Law—Equal Protection of the Laws, 82 Harv. L. Rev. 1065 (1969). As stated by the United States Supreme Court in Reed v. Reed, 404 U.S. 71, 75-76, 30 L. Ed. 2d 225, 92 S. Ct. 251 (1971): [T]his Court has consistently recognized that the Fourteenth Amendment does not deny to States the power to treat different classes of persons in different ways. .. . . The Equal Protection Clause of that amendment does, however, deny to States the power to legislate that different treatment be accorded to persons placed by a statute into different classes on the basis of criteria wholly unrelated to the objective of that statute. A classification “must be reasonable, not arbitrary, and must rest upon some ground of difference having a fair and substantial relation to the object of the legislation, so that all persons similarly circumstanced shall be treated alike.” Royster Guano Co. v. Virginia, 253 U.S. 412, 415 (1920). Thus, when a statute provides that one class is to receive different treatment than another, these constitutional provisions require that: (1) the legislation must apply alike to all persons within the designated class; and (2) reasonable ground must exist for making a distinction between those who fall within the class and those who do not. Belancsik v. Overlake Memorial Hosp., 80 Wn.2d 111, 115, 492 P.2d 219 (1971); Rinaldi v. Yeager, 384 U.S. 305, 16 L. Ed. 2d 577, 86 S. Ct. 1497 (1966). In determining the constitutionality of the statute the court does not consider the statute in isolation but considers it rather against the background of other statutes which deal with the rights of persons similarly situated. It reaches its conclusions as to the constitutionality or unconstitutionality in light of the whole picture. Halliburton Oil Well Cementing Co. v. Reily, 373 U.S. 64, 69, 10 L. Ed. 2d 202, 83 S. Ct. 1201 (1963). In Gregg Dyeing Co. v. Query, 286 U.S. 472, 479-80, 76 L. Ed. 1232, 52 S. Ct. 631, 84 A.L.R. 831 (1932), the court in upholding the constitutionality of a gasoline tax statute stated: But appellants question the right to invoke other statutes to support the validity of the Act assailed. To stand the test of constitutionality, they say, the Act must be constitutional “within its four corners,” that is, considered by itself. This argument is without merit. The question of constitutional validity is not to be determined by artificial standards. What is required is that state action, whether through one agency or another, or through one enactment or more than one, shall be consistent with the restrictions of the Federal Constitution. In practical terms, then, RCW 36.45.030, in the context of other statutes relating to governmental tort liability, establishes two distinct levels of classification or discrimination. First, the provision treats counties differently than all other governmental entities, including the state, by providing for a significantly shorter period during which actions may be commenced against it. Second, the statute discriminates between victims of the tortious conduct of counties and vie tixns of the tortious conduct of other governmental entities. In effect, victims of the tortious conduct of counties suffer the “burden” of having to commence their actions within 3 months of the expiration of the “presentation period,” while victims of the tortious conduct of other governmental entities, including the state, enjoy the relative “privilege” of commencing their actions within 3 years of the date of the occurrence. In other words, RCW 36.45.030 provides a glaring exception to the otherwise uniform scheme of governmental tort liability in the state of Washington. No rational permissible reason has been offered, nor have we been able to discern one, which would justify making such a distinction between counties and other governmental entities or between victims of the tortious conduct of counties and victims of the tortious conduct of other governmental entities. The only reasons offered by respondent to justify the classifications made relate to the reasonableness of limitations on the commencement of causes of action against governmental entities in general. Respondent relies heavily on the majority view in Cook v. State, 83 Wn.2d 599, 521 P.2d 725 (1974) that Washington has made only a limited and conditional waiver of sovereign immunity. Thus, respondent argues, the state is free to impose whatever conditions it pleases with respect to actions against the state or any of its political subdivisions, municipal corporations or quasi municipal corporations. However, this argument rests on the erroneous assumption that because a state may validly choose either to maintain or to waive its sovereign immunity protection, any conditions, however arbitrary, that may be imposed in the process are constitutional. In reality, sovereign immunity has nothing to do with the ultimate classifications which conditions establish. Once sovereign immunity has been waived, even partially, any legislative classifications made with, reference thereto will be constitutional only if they conform to the equal protection guarantees of the state and federal constitutions. Accordingly, in the absence of a rational basis for provid ing otherwise, all persons similarly situated must be provided equal access to the courts for the redress of wrongs committed by governmental entities. As stated above, we have been unable to discern any rational basis for treating counties and victims of their tortious conduct any differently than other governmental entities and victims of their tortious conduct. Accordingly, we hold RCW 36.45.030 unconstitutional as violative of Const. art. 1, § 12 and U.S. Const. amend. 14 insofar as it purports to impose a different time limitation on the commencement of tort actions against counties than is imposed on the commencement of tort actions against other governmental entities in the state. This conclusion is supported by the rationale of a number of cases decided by the Illinois Supreme Court while testing the state governmental immunity statutory scheme against the requirements of a state constitutional “equal protection” provision similar to Const. art. 1, § 12. In Harvey v. Clyde Park Dist., 32 Ill. 2d 60, 203 N.E.2d 573 (1965), a minor child who was injured in a park department playground successfully challenged a governmental immunity statute which insulated the park district from liability. The court in Harvey stated: The determinative question under section 22 of article IV is whether the statutory classification is rational . . . The circumstance that the alleged arbitrary discrimination results from a statutory pattern rather than from a single statute has not barred consideration of claims of violation of the equal protection clause of the 14th amendment to the Constitution of the United States . . . and we see no reason why that circumstance should bar the plaintiff’s claim of discrimination in this case. . . . So far as the present case is concerned, cities and villages, park districts, school districts and forest preserve districts, as well as the State itself, all maintain recreational facilities that are available for public use. If the child involved in the present case had been injured on a slide negligently maintained in a park operated by a city or village there is no legislative impediment to full recovery. If the child had been injured on a slide negligently maintained by a school district, or by the sovereign State, limited recovery is permitted. But if the child had -been injured on a slide negligently maintained by a forest preserve district, or, as was actually the case, by a park district, the legislature has barred recovery. In this pattern there is no discernible relationship to the realities of life. We hold, therefore, that the statute relied upon by the defendant is arbitrary, and unconstitutionally discriminates against the plaintiff. Harvey v. Clyde Park Dist., supra at 64-67. Following Harvey the court struck down a statute granting immunity to counties from liability for personal injuries, property damage and death caused by the negligence of their agents. Hutchings v. Kraject, 34 Ill. 2d 379, 215 N.E.2d 274 (1966). The court stated at page 382: “The infirmity of this legislation lies in classifying governmental units as such, without regard to similarity of function.” In Lorton v. Brown County Community Unit School Dist. 1, 35 Ill. 2d 362, 366, 220 N.E.2d 161 (1966), the court, in striking down a notice of claim provision that applied to claims against school districts but not to other similar governmental entities, stated: The courts of this state must be open to all those similarly situated upon the same conditions, and where procedures are provided which are applicable to some and not applicable to others under substantially like circumstances and there are no discernible logical' reasons ap parent for the variations, they must fall as violative of section.22 of article IV of the Illinois constitution. See also Treece v. Shawnee Community Unit School Dist. 84, 39 Ill. 2d 136, 233 N.E.2d 549 (1968); Haymes v. Catholic Bishop, 41 Ill. 2d 336, 243 N.E.2d 203 (1968); and Cleary v. Catholic Diocese, 57 Ill. 2d 384, 312 N.E.2d 635 (1974). Cf. Republic Pictures Corp. v. Kappler, 151 F.2d 543, 162 A.L.R. 228 (8th Cir. 1945); Gillespie v. Pickens County, 197 S.C. 217, 14 S.E.2d 900 (1941). Respondent finally contends Const, art. 1, § 12 specifically excludes municipal corporations from its proscriptions, and, therefore that provision is not applicable to the instant case. However, as pointed out in Harvey v. Clyde Park Dist., supra at 65: Nor is it significant that the quoted provision of section 22 of article IV has been held inapplicable to municipal corporations generally, and park districts in particular . . . For more is involved here than just the classification of governmental units. Those persons who are injured by the negligence of particular governmental units are also classified, and section 22 of article IV prohibits the granting of “special or exclusive” privileges to individuals. “This provision prevents the enlargement of the rights of one or more persons in discrimination against the rights of others.” In view of the conclusion reached, plaintiffs’ other contentions need not be considered. Reversed. Stafford, C.J., and Finley, Rosellini, Hunter, Hamilton, Wright, Utter, and Brachtenbach, JJ., concur. Plaintiffs complied with the notice of claim provision in RCW 36.45.010 but not with the 3-month provision for commencing actions in RCW 36.45.030. Plaintiffs do not contend the 3-month provision is inapplicable because the notice of claim provision is violative of equal protection. We do not reach that issue. The section of the Illinois Constitution applied provides: “The general assembly shall not pass local or special laws in any of the following enumerated cases . . . Granting to any corporation, association or individual any special or exclusive privilege, immunity or franchise whatever.” Ill. Const. art .4, § 22. Article 1, section 12 of the Washington Constitution provides: “No law shall be passed granting to any citizen, class of citizens, or corporation other than municipal, privileges or immunities which upon the same terms shall not equally belong to all citizens, or corporations.”

Horowitz, J. Defendants in two of these three consolidated cases appeal from superior court order denying their motions to suppress Breathalyzer test results or dismiss the prosecutions on charges of driving while intoxicated. In the third case the State seeks review of a district court order dismissing similar prosecutions. The three cases all raise the question whether the routine destruction and disposal of Breathalyzer test ampoules violates the due process rights of persons taking the test who are later prosecuted for driving while intoxicated. Defendants here voluntarily took the Breathalyzer test to determine blood alcohol content after being arrested on suspicion of driving while intoxicated. They now seek suppression of the Breathalyzer test results or dismissal of the prosecutions on the grounds the State unconstitutionally destroyed the ampoules, which are said to be material evidence helpful to their defense. The Superior Courts for Clark and Pierce Counties denied the motions to suppress or dismiss. We affirm these orders. The Federal Way District Court, King County, dismissed the prosecutions. We reverse that judgment and hold that the routine destruction and disposal of used Breathalyzer test ampoules does not violate due process. The relevant facts are common to all defendants. Following their arrests they voluntarily submitted to a test of their blood alcohol content by means of the Breathalyzer machine. This procedure is authorized by Washington's implied consent law, RCW 46.20.308. The Breathalyzer test yields a reading of the blood alcohol content which is admissible as evidence in any civil or criminal trial where a defendant is alleged to have been driving while under the influence of alcohol. See RCW 46.61.506. Under that statute the test result may create a rebuttable presumption the defendant was intoxicated. The scientific principles underlying the Breathalyzer test and the required procedure for its administration have been described by this court in the past. See Schoultz v. Department of Motor Vehicles, 89 Wn.2d 664, 574 P.2d 1167 (1978); State v. Baker, 56 Wn.2d 846, 355 P.2d 806 (1960). The test is based on a predictable reaction between alcohol in the subject's breath and a chemical solution contained in a small glass ampoule. A sample of the subject's breath is forced into the ampoule and the resulting chemical reaction is measured by comparing the reacted chemical solution to a nonreacted sample by means of a photoelectric device. The results are calibrated in terms of a percentage of alcohol in the blood. After the officer administering the test has recorded this reading the test ampoule is routinely destroyed. It is the destruction and disposal of the test ampoule to which the defendants here object. The defendants sought discovery of the ampoules used in their tests and, upon the State's failure to produce them, moved for suppression or dismissal. They claim the used ampoule would yield material evidence at their trials, and the State must therefore preserve and store them. Failure to do so, it is argued, violates due process under the rule stated by this court in State v. Wright, 87 Wn.2d 783, 557 P.2d 1 (1976). We note there is no evidence that any of the defendants took advantage of the statutory right under RCW 46.61.5.06(5) to obtain a contemporaneous and independent test of blood alcohol content administered by a qualified person of the subject's own choosing, although that right is explicitly revealed in the statement read to every subject who is asked to take the Breathalyzer test. Defendant's many contentions regarding the materiality and usefulness of the used Breathalyzer test ampoules, and the. alleged constitutional requirement to preserve them, can be summarized in two statements. First, the used ampoules can be subjected to scientific testing which yields results purportedly capable of impeaching the validity of the original Breathalyzer test results. Second, the used ampoules can be examined for several qualities by ordinary means, yielding conclusions purportedly capable of impeaching the credibility of the testing officer with regard to the propriety of the original testing procedure. These contentions will be considered separately. I. Use of used ampoules to impeach original test results. The courts below each heard expert testimony regarding the feasibility of performing scientific tests of the contents of a used ampoule, with the goal of supporting or refuting the validity of the original test results. Retesting procedures are enthusiastically supported by some scientists. They believe the ampoule contents can be analyzed for volume and composition in such a way as to yield reliable results which can be compared significantly to the original test results. These procedures, defendants maintain, would allow them to introduce expert testimony at their trials to rebut the evidence of the original test. The materiality of this expert testimony is the basis of their claim the used ampoules must be preserved. The threshold question, however, considered by the superior courts below, is whether such expert testimony would be admissible at trial. Although retesting is claimed to be reliable by some scientists, others are not persuaded. The courts heard testimony from recognized experts in the fields of analytical chemistry and toxicology, with long experience with the development and use of the Breathalyzer machine. These experts testified that retesting procedures are not scientifically reliable due to unpredictable changes in the stored chemicals and inadequacy of volume-testing techniques, and the principles used to draw conclusions based on these procedures are not generally accepted in the scientific community. Both superior courts applied the prevailing test for admissibility of scientific experimental evidence, which is discussed below, and held that expert testimony regarding the results of retesting used ampoules would be inadmissible. They concluded the State had no duty to preserve the ampoules for this purpose. The district court below did not consider the threshold question of admissibility. The test applied by the courts below, commonly known as the Frye standard, is whether the scientific principle from which deductions are made is sufficiently established to have gained general acceptance in the scientific community. The standard was originally set out in Frye v. United States, 293 F. 1013, 1014 (D.C. Cir. 1923). It has since been adopted by at least four other federal courts of appeal and reaffirmed by the District of Columbia Circuit. This court implicitly adopted this standard in State v. Woo, 84 Wn.2d 472, 527 P.2d 271 (1974). Moreover, courts of at least nine other states have adopted it. It is therefore the prevailing rule and no court to our knowledge has rejected it with regard to the admissibility of testimony based on scientific experimental procedures at a criminal trial. The rationale of the Frye standard is that expert testimony may be permitted to reach a trier of fact only when the reliability of the underlying scientific principles has been accepted by the scientific community. See United States v. Franks, 511 F.2d 25 (6th Cir. 1975). See also J. Richardson, Modern Scientific Evidence §§ 6.2, 6.3 (2d ed. 1974). In other words, scientists in the field must make the initial determination whether an experimental principle is reliable and accurate. This court adheres to the rule that the reliability of scientific evidence must be shown as a prerequisite to its admission. State v. Baker, supra. We therefore hold that the superior courts below properly applied the Frye standard of general acceptance in the scientific community to determine the admissibility of expert testimony regarding retesting of Breathalyzer test ampoules. The district court erred in failing to consider this question and assuming the testimony is admissible. Although certain of the defendants involved in the superior court proceedings argue before this court that the Frye standard should not be applied, they do not suggest any alternative standard for admissibility. Furthermore, they conceded at their hearing below that the Frye standard generally governs admissibility of scientific evidence. We therefore reject the contention the Frye standard does not apply. We also hold the superior courts' findings that the ampoule retesting procedures are not generally accepted are supported by substantial evidence in the record. We decline to adopt defendants' suggestion we review the record de novo in this regard and dispense with our rule that findings supported by substantial evidence will not be set aside on appeal. Parkridge v. Seattle, 89 Wn.2d 454, 464, 573 P.2d 359 (1978). The trial judges below were in a position uniquely suited to making this determination. Even were we to undertake a de novo review, though, we would find the weight of expert opinion denying acceptance of such procedures in the scientific community very persuasive. We conclude that expert testimony based on scientific retesting of used Breathalyzer ampoules is inadmissible as evidence at defendants' trials. The used ampoules are therefore not material evidence which can be used as a basis for impeaching the original test results, and the State has no duty to preserve them for such a purpose. We note the three states which have held due process requires retention of used ampoules for this purpose have done so without considering the question whether proffered expert testimony based on retesting of the ampoules is properly admissible. See Lauderdale v. State, 548 P.2d 376 (Ala. 1976); People v. Hitch, 12 Cal. 3d 641, 527 P.2d 361, 117 Cal. Rptr. 9 (1974); State v. Michener, 25 Ore. App. 523, 550 P.2d 449 (1976). Indeed, the only previous case we have found which does consider the admissibility question found there was no generally accepted procedure for retesting, and held destruction of the ampoules did not violate due process. State v. Bryan, 133 N.J. Super. 369, 336 A.2d 511 (1974). II. Use of used ampoules to impeach the testing officer's credibility. The defendants also contend the used ampoules have evidentiary value independent of the retesting procedures in that they can be examined for evidence that the original test was improperly administered. Specifically they claim food particles in the ampoule would show the testing officer did not inspect the defendants' mouths for food before administering the test, as required by this court's decision in State v. Baker, supra. Furthermore, the size of the ampoule could be checked once again to corroborate or refute the testing officer's testimony that the ampoule conformed to certain size specifications. The used ampoules are thus claimed to be material evidence useful to the defense in impeaching the credibility of the officer who administered the original Breathalyzer test. The test result, as noted above, may be introduced only to create a presumption, which is rebuttable, that a defendant was intoxicated at the time he was arrested. See RCW 46.61.506. In State v. Wright this court held the State is required to preserve all potentially material and favorable evidence as protection afforded to an accused by due process. Used Breathalyzer test ampoules, defendants claim, meet the test of potential materiality and favorableness, and must therefore be preserved under the rationale of that case. We cannot agree that used ampoules are material in a sense that rises to constitutional significance, and therefore hold that due process does not require that they be preserved. The United States Supreme Court set out a test for the materiality of nondisclosed evidence in United States v. Agurs, 427 U.S. 97, 49 L. Ed. 2d 342, 96 S. Ct. 2392 (1976). The court held constitutional error is committed by nondisclosure only if the evidence creates a reasonable doubt which did not otherwise exist. United States v. Agurs, supra at 112. This definition of constitutionally material evidence is a refinement of the court's earlier holding that suppression of material evidence which is favorable to the accused violates due process. Brady v. Maryland, 373 U.S. 83, 10 L. Ed. 2d 215, 83 S. Ct. 1194 (1963). We do not believe that the proposed use of the ampoules in this case— to impeach the credibility of the officer who administered the original test — is a means of raising a reasonable doubt which did not otherwise exist within the meaning of the rule set out above. The testing officer must attest to the proper completion of each of the numerous steps in administering the test. He or she must attest to having checked the subject's mouth for food and having checked the ampoule for proper size specifications, in addition to numerous other procedures required by WAC 448-12-020 and judicial rule. See, e.g., State v. Baker, supra. The officer may testify and be cross-examined regarding the care taken at each step in the procedure. In sum, the defendant has adequate opportunity at trial to impeach the credibility of the officer without access to the used ampoule. Furthermore, the chain of logic between the credibility of the officer with regard to the proper performance of the test (the results of which can, at most, create a rebuttable presumption), and the innocence or guilt of the defendant is a long one. The crucial issue, the defendant's guilt or innocence of the charge of driving while intoxicated, is subject to proof of a much more direct nature. We conclude that the used Breathalyzer test ampoules are not material evidence in a constitutional sense and nondisclosure of the ampoules caused by routine destruction and disposal is not constitutional error. This result was reached by a federal district court in Edwards v. Oklahoma, 429 F. Supp. 668 (W.D. Okla. 1976). The court there rejected the due process argument of the leading case requiring retention of used ampoules, People v. Hitch, supra. The federal court argued the constitutional rule requiring retention of evidence is focused on actual harm caused to a defendant by nondisclosure of material evidence. Materiality within the scope of constitutional protection is determined not by speculation about whether the evidence may possibly yield favorable evidence at trial, but rather by the reality of the prejudice to the defendant caused by nondisclosure. Edwards v. Oklahoma, supra at 671. Our holding here is a refinement of the rule stated in State v. Wright, supra. In Wright the evidence which was destroyed was the totality of the direct evidence in the case. All else was circumstantial. The destroyed evidence thus related directly to the defendant's ability to determine the facts and make a defense which could prove his innocence or create a reasonable doubt as to his guilt. The substantial prejudice to the defendant caused by the destruction of the evidence in that case is obvious. Under the standard set out in the Agurs case, the evidence was material in a constitutional sense. By contrast, destruction of used Breathalyzer test ampoules, as noted above, does not interfere with the defendant's ability to determine the facts or raise a defense of nonintoxication. Testimony to be gained from the ampoules is only tangential to the question of innocence or guilt. The ampoules are therefore not material in a constitutional sense. We note that the courts of nine other states have reached the conclusion that disposal of used ampoules does not violate due process. Persons arrested and asked to take a Breathalyzer test are uniformly offered the opportunity to obtain their own best evidence for use at any trial resulting from the conduct leading to their arrest. They have the right to obtain an independent test of their blood alcohol content administered by a qualified person of their own choosing. RCW 4fi.61.506(5). They are informed of this right when asked to take the test. Although we do not believe failure to obtain an independent test could amount to a waiver of any recognized constitutional right to due process, the statutory requirement demonstrates an important protection of the subject's right to fundamental fairness which is built into our implied consent procedure. Moreover, the exercise of this right would yield test results contemporaneous with those obtained by the State, which could have considerable force in rebutting the State's evidence. Washington's procedure cannot be said to be fundamentally unfair. In view of the disposition we make of this matter we do not reach the question of an appropriate remedy for unconstitutional destruction of material evidence. The superior court orders denying defendants' motions to suppress or dismiss are affirmed; the district court order dismissing certain prosecutions is reversed. The cases are remanded for further proceedings. Wright, C.J., Rosellini, Hamilton, Stafford, Utter, Dolliver, and Hicks, JJ., and Ryan, J. Pro Tern., concur. Reconsideration denied December 28, 1978. United States v. Kilgus, 571 F.2d 508, 510 (9th Cir. 1978); United States v. Brown, 557 F.2d 541 (6th Cir. 1977); United States v. Alexander, 526 F.2d 161, 163 (8th Cir. 1975); United States v. Addison, 498 F.2d 741 (D.C. Cir. 1974); Marks v. United States, 260 F.2d 377, 382 (10th Cir. 1958), cert. denied, 358 U.S. 929, 3 L. Ed. 2d 302, 79 S. Ct. 315 (1959). People v. Kelly, 17 Cal. 3d 24, 549 P.2d 1240, 130 Cal. Rptr. 144 (1976); State v. Conner, 241 N.W.2d 447 (Iowa 1976); Commonwealth v. Lykus, 367 Mass. 191, 327 N.E.2d 671 (1975); People v. Tobey, 401 Mich. 141, 257 N.W.2d 537 (1977); State v. Bryan, 133 N.J. Super. 369, 336 A.2d 511 (1974); People v. Leone, 25 N.Y.2d 511, 255 N.E.2d 696, 307 N.Y.S.2d 430 (1969); State v. Olderman, 44 Ohio App. 2d 130, 336 N.E.2d 442 (1975); Commonwealth v. Topa, 471 Pa. 223, 369 A.2d 1277 (1977). State v. Cantu, 116 Ariz. 356, 569 P.2d 298 (1977); People v. Hedrick, 557 P.2d 378 (Colo. 1976); People v. Godbout, 42 Ill. App. 3d 1001, 356 N.E.2d 865 (1976); People v. Stark, 73 Mich. App. 332, 251 N.W.2d 574 (1976); State v. Hanson, 493 S.W.2d 8 (Mo. Ct. App. 1973); State v. Shutt, 116 N.H. 495, 363 A.2d 406 (1976); State v. Bryan, 133 N.J. Super. 369, 336 A.2d 511 (1974); State v. Watson, 48 Ohio App. 2d 110, 355 N.E.2d 883 (1975); Edwards v. State, 544 P.2d 60 (Okla. Crim. App. 1975).

Stafford, J. — This is an action to determine the extent of insurance coverage. The Court of Appeals held that coverage provided by petitioner Rollins Leasing Corporation insured respondents McDonald Industries, Inc., up to the policy limits. We affirm. Respondent McDonald rented a tractor (the portion of a tractor-trailer combination which includes the engine and driver's compartment) from Rollins. The rental agreement stated that Rollins would provide insurance coverage for liability "arising from the ownership, maintenance or use" of the rented vehicle. The rental agreement further stated on the reverse side, in conspicuous type, "said policy [of insurance] does not cover . . . liability arising from loading or unloading of said vehicle". Employees of McDonald attached the rented tractor to a trailer owned by McDonald and loaded an 11-ton steel crane counterweight onto the trailer. The weight was secured by only one chain, which the trial court found to be violative of a federal regulation and thus negligence per se. While a McDonald employee was driving the tractor-trailer combination through an "S" curve, at 40 m.p.h., the coun terweight slid under the retaining chain and fell off the trailer. Two vehicles collided with the counterweight, resulting in three separate bodily-injury claims. Although substantial damages were incurred, they are covered by insurance regardless of the outcome of this decision. McDonald and Safeco Insurance Co., which had issued a policy to McDonald covering such liability, brought a declaratory judgment action requesting that Rollins' insurance coverage under the rental agreement be deemed primarily liable and that the Safeco policy be held to provide only secondary coverage. The trial court dismissed the complaint with prejudice, holding the accident did not not arise from "ownership, maintenance or use" of the rented vehicle, but instead was "caused by negligent loading of the trailer in question". The trial court held the accident was excluded from coverage by the "loading and unloading" clause of the insurance policy. The Court of Appeals reversed. It found the exclusionary clause to be ambiguous, and thus strictly construed it against Rollins. Since the accident did not occur during the "loading and unloading" process, the exclusionary clause was held not to apply. We granted review to determine whether an insurance policy which covers liability arising from the ownership, maintenance or use of a vehicle but which excludes coverage for liability arising from loading or unloading of the vehicle, covers liability arising from an accident caused by improper loading. Before this issue can be resolved two other matters must be discussed. First, the rental agreement makes it clear that the parties intended that liability insurance coverage was to be provided by Rollins. It had a liability policy on the rented vehicle under which the renter became an insured unless he opted out of the coverage. This was explained on the rental agreement form, and McDonald did not opt out of the coverage. The rental agreement also stated the limits of the liability insurance policy, including the fact that it excluded "liability arising from loading or unloading of said vehicle". It repeatedly referred to this as liability insurance, and contained a "hold harmless" clause whereby the renter was obligated to indemnify Rollins from any loss in excess of the liability insurance provided. Furthermore, Rollins does not contend this was not a liability insurance policy. Further, there is an undisputed finding of fact that Rollins provided liability insurance. Second, it is apparent that, in the case at hand, the covered vehicle was in "use" when the accident occurred. Indeed it was being used for the sole purpose for which it had been rented. See Mays v. Aetna Cas. & Sur. Co., 242 So. 2d 264 (La. App. 1970). The "use" was, in fact, a causative factor in the accident. Without the motive power of the insured tractor the trailer would not have been able to negotiate the "S" curve on the highway at 40 m.p.h. The tractor was more than a mere coincidental place in which the injury occurred. Without question its use "contributed in some way to produce the injury". Transamerica Ins. Group v. United Pac. Ins. Co., 92 Wn.2d 21, 593 P.2d 156 (1979); Handley v. Oakley, 10 Wn.2d 396, 116 P.2d 833 (1941). Thus, the accident was covered by the insurance unless excluded by the "loading and unloading" exemption. In determining the meaning of the "loading and unloading” clause the normal rules of construing insurance policies must be employed. Much depends upon whether there is an ambiguity in the language of the contract. Coverage is considered ambiguous "when, on its face, it is fairly susceptible to two different interpretations, both of which are reasonable". Morgan v. Prudential Ins. Co. of America, 86 Wn.2d 432, 435, 545 P.2d 1193 (1976) and cases cited therein. If ambiguous it should be interpreted in accordance with the way it would be understood by the ordinary man buying insurance, "even though a different meaning may have been intended by the insurer." It is fundamental that ambiguities in the policy must be construed against the insurer and in favor of the insured. This rule applies with added force in the case of exceptions and limitations to the policy's coverage. (Citations omitted.) Witherspoon v. St. Paul Fire & Marine Ins. Co., 86 Wn.2d 641, 650, 548 P.2d 302 (1976); accord, Shotwell v. Transamerica Title Ins. Co., 91 Wn.2d 161, 167-68, 588 P.2d 208 (1978), and cases cited therein. Ambiguities need not be interpreted the same when they are used to extend coverage rather than to except coverage, due to the rule of strict construction against the insurer. See 7 Am. Jur. 2d Automobile Insurance § 205 (1980); 12 G. Couch, Cyclopedia of Insurance Law § 45:125 (2d ed. 1964); cf. Aetna Ins. Co. v. Kent, 85 Wn.2d 942, 540 P.2d 1383 (1975). In any event insurance contracts should be given a fair, reasonable and sensible construction which fulfills the apparent object of the contract rather than a construction which leads to an absurd conclusion or renders a policy nonsensical or ineffective. Morgan v. Prudential Ins. Co. of America, supra. Ambiguity should be resolved so that a doubtful provision in a contract will not unfairly devour the whole policy or relieve the insurer from liability fairly within the spirit of the policy. Riordan v. Commercial Travelers Mut. Ins. Co., 11 Wn. App. 707, 525 P.2d 804 (1974). In this case there is an obvious ambiguity regarding the meaning of the clause "arising from the loading and unloading of said vehicle". One cannot determine whether the clause was intended to apply only during the actual process of loading or unloading, whether it was to apply to the result of negligent loading operations that occurred well after accomplishment of the actual loading, or whether it was to apply to any incident in which the load was a causal factor. All interpretations are within the realm of reasonableness. Furthermore, a reading of standard treatises would have put the drafter of a contract, such as this, on notice that the clause "arising from the loading and unloading" is ambiguous. Normally the clause is used to extend coverage for "use". Indeed we are aware of no reported cases which treat this clause as a limitation of coverage in an instance such as this. Nevertheless, there is a split of authority as to whether "loading and unloading" extends coverage to include that time when the goods are "at rest" or until there is a "completed operation". See Transamerica Ins. Group v. United Pac. Ins. Co., supra at 24-25; see generally 6B J. Appleman, Insurance Law and Practice § 4322 (1979); 1 R. Long, The Law of Liability Insurance §§ 6.01 et seq. (1980); 12 Couch §§ 45:123 et seq. Both theories agree, however, that "loading and unloading" is used to cover liability while the vehicle is stationary, Long, at §§ 6.02, 6.03, and is used to cover liability arising during the "process" or "operation" of loading or unloading, Apple-man, at § 4322; Transamerica, at 26. Rollins attempts to change the general meaning of the clause by extending it to liability which is caused by the loading of the vehicle even if it occurs after the loading process has been completed and while the vehicle is in motion, and would do this without in any way clarifying its purported intent in the questioned document. Since the language of the agreement is ambiguous, the court must give effect to the reasonable interpretation most favorable to the insured. See Witherspoon v. St. Paul Fire & Marine Ins. Co., supra; Shotwell v. Transamerica Title Ins. Co., supra. This is only logical since it was the insurer who used the ambiguous language. If it was intended that a more expansive exception be imposed, the insurer could have clarified its intent. 43 Am. Jur. 2d Insurance § 279 (1969); 1 G. Couch, Cyclopedia of Insurance Law § 15:77 (2d ed. 1959); see also Starr v. Aetna Life Ins. Co., 41 Wash. 199, 203-04, 83 P. 113 (1905) quoted in Riordan v. Commercial Travelers Mut. Ins. Co., supra at 711. The purpose of insurance is to give protection and it can be presumed that such was the intent of the parties. Exemptions are contrary to this basic intent, and thus should not be extended beyond their clear and unequivocable meaning. See generally 1 Couch, at § 15:80. Rollins' expansive reading of the exclusion clause violates another rule of insurance contract construction. As mentioned previously, an ambiguous provision should be read so that it does not unfairly devour the whole policy or relieve the insurer of liability fairly within the spirit of the policy. Rollins' reading would greatly decrease the coverage afforded during a vehicle's "use" if, whenever the load was a causal factor in the accident, the clause would exempt it from coverage. On the other hand, interpreting the clause to exclude coverage while the vehicle was in the process of loading or unloading would still give effect to the exclusionary language but would not unfairly and without clear notice decrease the protection provided during "use". Even if this is a case of first impression, we are not without guidance. The problem was anticipated in 12 Couch, at § 45:125 wherein it was stated: It is necessary to bear in mind the distinction in the effect of the loading and unloading clause where it relates to coverage and where it is an exception to coverage. Where it relates to coverage, the presence of any ambiguity in the phrase requires that it be interpreted as broadly as is reasonably proper in order to provide the greatest coverage possible. Where it appears in the policy as an exception, the existence of ambiguity requires that it be interpreted as narrowly as possible, for the same purpose of providing the maximum coverage through making the least exception to the coverage of the policy. (Footnotes omitted. Italics ours.) Rollins' only authority for an expansive reading of the exclusionary clause is some language in Aetna Ins. Co. v. Kent, supra at 944. That case was concerned with two policies of insurance written by the same company. The automobile liability policy covered liability "arising out of the ownership, maintenance or use, including loading and unloading, of any automobile"; the contractor's policy expressly did not cover liability "arising out of the ownership, maintenance, operation, use, loading or unloading of . . . any automobile". (Italics omitted.) An accident occurred when a rock fell out of the contractor's truck due to improper loading. The Court of Appeals liberally construed the former policy and strictly construed the latter so that both covered the liability imposed. This court reversed, holding the two policies, issued to the same party by the same company, should be read together to ascertain the intent of the parties, and that the rule of strict construction should not be used to override the otherwise apparent clear intention of the parties. This court found that the parties did not intend to provide overlapping coverage, so only the automobile liability policy covered the incident. We did not hold, as argued by Rollins, that the clause must be construed the same way whether used to exclude or extend coverage. There is no inconsistency between our holding in Aetna and our disposition of this case. Given our disposition of the case, we need not address other issues raised by the parties. The Court of Appeals is affirmed. Brachtenbach, C.J., and Rosellini, Utter, Dolliver, Hicks, Williams, Dore, and Dimmick, JJ., concur. The mere fact that this was illegal does not take it outside the coverage of the policy, however. See Transamerica Ins. Group v. United Pac. Ins. Co., 92 Wn.2d 21, 29, 593 P.2d 156 (1979). Even if this were not an insurance contract our disposition would not necessarily be different. The rules regarding the construction of insurance contracts are basically the same as those governing other contracts. For example, the rule that ambiguous language must be construed in favor of the insured is merely the practical application of the general rule regarding contracts that a written agreement should, in case of doubt as to the meaning thereof, be interpreted against the party who has drawn it. Jacoby v. Grays Harbor Chair & Mfg. Co., 77 Wn.2d 911, 918-19, 468 P.2d 666 (1970). It has been held that the existence of two rival theories of interpretation of the loading and unloading clause establishes the fact that the clause is ambiguous. August A. Busch & Co. of Mass., Inc. v. Liberty Mut. Ins. Co., 339 Mass. 239, 158 N.E.2d 351 (1959).

Neill, J. Defendant was charged with negligent homicide by motor vehicle. Following the jury verdict of guilty, the trial court granted defendant’s motion for a new trial. The state appealed. We reversed and remanded with instructions to reinstate the verdict. State v. Jacobsen, 74 Wn.2d 36, 442 P.2d 629 (1968). Defendant now appeals from the judgment and sentence. As set forth in State v. Jacobsen, supra, the fatal accident giving rise to the charge against defendant occurred at an uncontrolled intersection. Defendant was the favored driver, but was exceeding the speed limit. The driver of the other (disfavored) vehicle, in which the decedent was a passenger, failed to yield the right-of-way. The state moves to dismiss this appeal. The motion is based on ROA 1-16, the pertinent portion of which reads: Without the necessity of taking a cross-appeal, the respondent may present and urge in the supreme court any claimed errors by the trial court in instructions given or refused and other rulings which, if repeated upon a new trial, would constitute error prejudicial to the respondent. The state argues that the word “may” in the above portion of the rule yields a mandatory result in that defendant, having failed to exercise his right in the first appeal; is now foreclosed. To the contrary, defendant asserts that the language of ROA 1-16 is permissive. He contends that he was not required, as respondent in the first appeal, to raise issues not inherent in the state’s assignment of error. He bolsters his argument by reference to ROA 1-46 (a) and CrR 101.04W (h) which require the trial court, at the time of sentencing, to advise the defendant of his right of appeal, the time limits thereof, and the availability of legal assistance. If the state’s interpretation of ROA 1-16 is accepted, argues defendant, the purpose of ROA 1-46 (a) and CrR 101.04W (h) is thereby thwarted. The issues now raised by defendant could have been raised by him on the state’s appeal without cross-appealing. Larson v. Seattle, 25 Wn.2d 291, 171 P.2d 212 (1946); ROA 1-16. The question remains whether they must have been raised. A similar procedural question was presented in State v. Bauers, 25 Wn.2d 825, 172 P.2d 279 (1946). There, we clearly set forth our policy against piecemeal appeals, but did not dismiss the appeal due to the failure of this court to consider issues actually raised on the first appeal and also to our interim overruling of the first Bauers decision. We adhere to our policy which prohibits issues from being presented on a second appeal that were or could have been raised on the first appeal. State v. Bauers, supra. However, to read ROA 1-16 as suggested by the state would render the trial court’s obligation under ROA I-46(a) and CrR 101.04W(h) meaningless. See Jones v. Rhay, 75 Wn.2d 21, 448 P.2d 335 (1968). We hold that ROA 1-16 is not mandatory in a criminal case where, as here, the first appeal was from an interlocutory order preceding the final sentencing of the defendant to the extent that the issues raised in the second appeal did not necessarily inhere in the contentions on the prior appeal. Only one of defendant’s assignments of error (a challenge to the sufficiency of the evidence) involves an issue foreclosed by the -first appeal. Although this assignment of error could include the issue of whether the evidence supports a finding that defendant’s conduct was more than ordinary negligence and constituted operation of a vehicle in a reckless manner or with disregard for the safety of others, no argument thereon is contained in the brief. We do not consider that issue. State v. Van Auken, 77 Wn.2d 136, 460 P.2d 277 (1969). Rather, the thrust of defendant’s argument on this assignment of error is that mathematical calculations place the proximate cause of the victim’s death with Miss Connie King, the other driver. That assertion was considered in State v. Jacobsen, supra, at 37-38. There we held that this case presents a situation involving, at most, concurrent causes which would not change the character of defendant’s conduct as a proximate cause of the collision. That disposition forecloses a second appeal on the issue of proximate cause. Defendant’s other assignments of error were not inherent in the contentions in the first appeal. We proceed to their merits. Defendant contends that the trial court commented on the evidence in violation of Const. art. 4, § 16. At the time of the alleged comment, a diagram of the accident scene and 11 photographs depicting the accident scene and the damaged automobiles had been admitted into evidence. Two of the photographs also showed the occupants of the other automobile lying on stretchers under blankets. Shortly thereafter, during argument on defense counsel’s objection to certain testimony, the court retired the jury and allowed them to take the photographic exhibits with them. Defendant argues the court thus inadvertently and subtly commented on the evidence. Permitting the jury to have and examine these particular exhibits, urges defendant, “quite probably” caused the jury to believe that the court intended these photographs to be considered above all other physical and narrative evidence and that, since this was the state’s evidence, the court was telling the jury that the state must be correct in filing the charge against the defendant. According to defendant, it would not occur to the jury that the court was simply trying to move the trial along in an orderly fashion. Indeed, defendant contends that the court’s action was so subtle that it is extremely doubtful that the jury even recognized the procedure as a comment on the evidence. Therefore, the court’s later admonition in its instructions that the jury-should not mistake any of the court’s actions as a comment on the evidence was insufficient to cure the error. In sum, it is the defendant’s position that the court’s procedure was so subtle a comment on the evidence that the jury did not take it as a comment. The contention answers itself. The purpose of Const. art. 4, § 16 is to prevent the jury from being influenced by knowledge conveyed to it by the trial judge as to his opinion of the evidence submitted. In keeping with this purpose, we have consistently held that this constitutional prohibition forbids only those words or actions which have the effect of conveying to the jury a personal opinion of the trial judge regarding the credibility, weight or sufficiency of some evidence introduced at the trial. E.g., State v. Galbreath, 69 Wn.2d 664, 419 P.2d 800 (1966); State v. Louie, 68 Wn.2d 304, 413 P.2d 7 (1966); State v. Brown, 19 Wn.2d 195, 142 P.2d 257 (1943); State v. Surry, 23 Wash. 655, 63 P. 557 (1900). In determining whether words or actions amount to a comment on the evidence, we look to the facts and circumstances of the case. It is, of course, possible that the personal opinion of a trial judge may be conveyed both directly and by implication. See State v. Lampshire, 74 Wn.2d 888, 447 P.2d 727 (1968). However, the challenged action of the trial court did not convey to the jury, either directly or by implication, any suggestion as to the court’s opinion or feelings as to the credibility, sufficiency or weight of the photographic evidence. Error is next assigned to the testimony of a police witness that the extent of damage to the automobiles was inconsistent with a collision of vehicles traveling within the legal speed limits. The witness, Sergeant Gross, testified that he had been investigating automobile accidents during his 16% years with the Wenatchee Police Department. He had investigated this accident and described the damaged condition of the automobiles involved. The following colloquy then took place: Q: From your experience in this field, do you have an opinion as to whether damage of this nature would be consistent with a collision between cars at speeds within the speed limit? A: I would say — [Defense counsel]: I’m going to object, I don’t think there is a proper foundation laid for that opinion. The Court: Overruled. Q: My question was, do you have an opinion? A: Yes, I do. Q: What would your opinion be? A: I would say it was severe damage for a city accident where the speed limit is twenty-five miles an hour. Q: My question would be whether it would be consistent with cars being driven within the speed limit? A: No, it would not be consistent. Insofar as defendant’s assignment of error seeks to attack the subject matter of this testimony, it must fail under our settled rule that issues not raised in the trial court will not be considered unless they involve incurable error. E.g., State v. Van Auken, 77 Wn.2d 136, 460 P.2d 277 (1969); State v. Gefeller, 76 Wn.2d 449, 458 P.2d 17 (1969). Further, the contention lacks merit in view of direct testimony, including that of defendant himself, indicating that he was traveling in excess of the speed limit. The sole question raised at the trial court, and properly before us here, pertains to the qualifications of the witness. Defendant argues that the fact that Sergeant Gross had investigated accidents during his 16% years with the Wen-atchee police was not sufficient to qualify him as an expert. The sufficiency of the qualifications of an expert witness is a matter within the sound discretion of the trial court. State v. Nelson, 72 Wn.2d 269, 432 P.2d 857 (1967); State v. Tatum, 58 Wn.2d 73, 360 P.2d 754 (1961). Defendant cites to us the case of Oyster v. Dye, 7 Wn.2d 674, 110 P.2d 863, 133 A.L.R. 683 (1941), wherein we held that the trial court had abused its discretion in permitting a witness to testify as an expert. There, even though the witness had admitted his total lack of experience with automobile wrecks, he was allowed to state his opinion as to speed based upon, inter alia, damage to the car. Under those circumstances, abuse of discretion was evident. The present case is a different matter. Here the witness testified to some 16% years of experience investigating accidents. The nature of that experience was further clarified when, on cross-examination, Sergeant Gross stated that he had investigated 25 or 30 accidents of the same type as that involved in this case. In the light of these circumstances, the trial court did not abuse its discretion in allowing the testimony. Defendant next contends that one of the photographic exhibits should not have been admitted. That issue is raised here for the first time 'and will not be considered. State v. Mudge, 69 Wn.2d 861,420 P.2d 863 (1966). Defendant further argues that subsection 2 of RCW 46.61.520, the statute under which he was charged, in permitting the court to sentence to either the penitentiary or the county jail, violates the due process and equal protection clauses of the Fourteenth Amendment, and thereby also constitutes cruel and unusual punishment. We have heretofore considered similar contentions as to this statute and determined that it is not unconstitutional. State v. Harvey, 57 Wn.2d 295, 356 P.2d 726 (1960); State v. Sayward, 66 Wn.2d 698, 404 P.2d 783 (1965). See also, State v. Blanchey, 75 Wn.2d 926, 454 P.2d 841 (1969). Defendant also attacks subsection (1) of RCW 46.61.520, in which two elements of the crime of negligent homicide are stated as driving “in a reckless manner” or “with disregard for the safety of others.” We have interpreted the statutory element of “disregard for the safety of others” as implying an aggravated kind of negligence, falling short of recklessness, but more serious than ordinary negligence. State v. Brooks, 73 Wn.2d 653, 440 P.2d 199 (1968); State v. Eike, 72 Wn.2d 760, 435 P.2d 680 (1967); State v. Partridge, 47 Wn.2d 640, 289 P.2d 702 (1955). It is defendant’s contention that the statutory elements, as interpreted by this court, are so vague that an accused cannot -understand the nature of the crime charged so as to intelligently admit or deny guilt. We disagree. To meet the constitutional test of due process, a criminal statute must be sufficiently definite to inform a person with reasonable precision what acts are prohibited so that he may have a certain, understandable rule of conduct and know what acts he must avoid. See generally, 16 Am. Jur. 2d Constitutional Law § 552 (1964). We are of the view that this statute fairly apprises, in words of common understanding, the acts or omissions proscribed. Criminal statutes need not spell out with absolute certainty every act or omission which is prohibited if the general terms of the act convey an understandable meaning to the average person. See Annot., 12 A.L.R.2d 580 (1950). This is especially true where the subject matter, as here, does not admit of precision. We think the terms “disregard for the safety of others” and “reckless manner” adequately convey such meaning. A similar attack was made on Oregon’s negligent homicide statute. After an exhaustive review of the authorities, the attack was rejected. State v. Wojahn, 204 Ore. 84, 282 P.2d 675 (1955). We are in accord with the view expressed by the Oregon court on this issue. Lastly, defendant contends that the state, in charging him while not charging the driver of the disfavored vehicle, denied him equal protection of the law. This contention is premised solely upon the fact that the prosecutor has failed to proceed against another who, defendant claims, is equally guilty. Defendant has neither asserted nor offered proof that the prosecutor’s conduct in this matter was without reasonable justification and constituted intentional or purposeful systematic discrimination in the enforcement of the law. The failure to prosecute all other possible violators of the law is not, per se, contrary to the Equal Protection Clause of the Fourteenth Amendment, United States Constitution, or of article 1, section 12 of the Washington Constitution. See People v. Harris, 182 Cal. App. 2d 837, 5 Cal. Rptr. 852 (1960); Edelman v. California, 344 U.S. 357, 97 L. Ed. 387, 73 S. Ct. 293 (1953); Boynton v. Fox West Coast Theatres Corp., 60 F.2d 851 (10th Cir. 1932); Ah Sin v. Wittman, 198 U.S. 500, 49 L. Ed. 1142, 25 S. Ct. 756 (1905); 4 Gonzaga L. Rev. 233, 245-51 (1969); Comment, 61 Columbia L. Rev. 1103 (1961). Defendant’s contention is insufficient. The judgment of the trial court is affirmed. All Concur. December 30, 1970. Petition for rehearing denied. In Gerberg v. Crosby, 52 Wn.2d 792, 795, 329 P.2d 184 (1958), we stated: “If the inferences to be drawn from physical facts are not a matter of such general knowledge as to be within the common experience of laymen, opinion evidence by a qualified expert is admissible to assist the jury in the proper understanding of the physical facts. Knight v. Borgan (1958), ante p. 219, 324 P. (2d) 797; Hopkins v. Comer (1954), 240 N.C. 143, 81 S.E.(2d) 368; Swanson v. LaFontaine (1953), 238 Minn. 460, 57 N.W.(2d) 262. ‘. . . If the issue involves a matter of common knowledge about which inexperienced persons are capable of forming a correct judgment, there is no need for expert opinion. There are many matters, however, about which the triers of fact may have a general knowledge, but the testimony of experts would still 'aid in their understanding of the issues. . . .’ Mason Ladd, Dean, The State University of Iowa College of Law, ‘Expert and Other Opinion Testimony,’ 40 Minn. L. Rev., 437, 443. “This court has long recognized that a qualified expert is competent to express an opinion on a proper subject even though he thereby expresses an opinion on the ultimate fact to be found by the trier of fact.” See also, Moyer v. Clark, 75 Wn.2d 800, 454 P.2d 374 (1969). Cf., Ewer v. Johnson, 44 Wn.2d 746, 270 P.2d 813 (1954).

Dore, J. This case concerns a dispute over attorney fees incurred in the probate of an estate. We hold that, in establishing the reasonableness of an attorney fee based on hours multiplied by an hourly rate, probate attorneys must offer evidence not only that the hourly rate was reasonable but also that the hours spent were necessary in processing the estate. Further, attorneys in probate are not entitled to an additional fee out of the estate in proving the reasonableness of their fees. Proceedings Below Carl Larson died intestate on January 27, 1979 in Pierce County. The decedent's cousin, Ivan O. Swanson agreed to act as personal representative. Swanson engaged his own attorney, Michael Manza, of Manza, Moceri, Gustafson & Messina, P.S., to probate the estate. Throughout the course of the probate proceedings, Mr. Manza was assisted by his son, Patrick Manza, first in the capacity of a legal intern and later as an attorney associate. In the subject case, 45 relatives in the United States and Sweden were determined to be entitled to inherit under the Washington descent and distribution statute. Administration of the estate required identification and genealogical classification of the heirs, liquidation of the estate assets, filing of federal and state tax returns, and distribution of assets to heirs. The proceeds from the sale of the estate assets, primarily timberlands, totaled $463,672.36. When the estate was ready to close, 33 of the 34 heirs in Sweden, through their attorney in fact, objected to the personal representative's final report and petition for distribution on three bases: (1) too much federal estate tax was paid; (2) the real estate was valued inconsistently in the federal and state tax returns, and (3) the attorney fees requested were excessive. Prior to the hearing, the first two objections were abandoned, leaving only the reasonableness of the attorney fee at issue. At the hearing held before a superior court commissioner, both the personal representative and the objectors presented expert testimony on the reasonableness of the requested attorney fees of $23,145. The commissioner found the requested fees were reasonable and entered findings of fact, conclusions of law and an order approving the final report. He also ordered the objectors' share of the estate to pay $10,000 additional attorney fees and $2,010.85 costs incurred by the Manza firm in proving a reasonable attorney fee in the final report. The objectors sought review of the court commissioner's order by a superior court judge, pursuant to RCW 2.24.050. The judge reviewed the record, heard oral argument, and denied the motion. His order directed payment of $23,145 to the estate's attorneys and approved the commissioner's assessment of $12,010.85 in additional attorney fees and costs. In addition, the judge allowed an additional attorney fee of $4,030 and costs of $350 for resisting the motion for revision and assessed these items against the objectors' share of the estate. The Court of Appeals affirmed the trial court's ruling that the $23,145 fee was reasonable, and held additional fees could be assessed against the estate for proving the reasonableness of contested attorney fees. The court held, however, that the additional fees should not have been assessed against the objectors' share of the estate but rather treated as expenses of the administrator. In re Estate of Larson, 36 Wn. App. 196, 674 P.2d 669 (1983). This court accepted review on the issues of (1) the reasonableness of the $23,145 fee, and (2) the propriety of assessing additional fees against the estate to prove the reasonableness of challenged attorney fees. Fiduciary Relationship In any dispute over attorney fees, our analysis must be premised on fundamental principles regarding the attorney-client relationship. A fiduciary relationship exists as a matter of law between an attorney and client, and the attorney owes the highest duty of fidelity and good faith to the client. Perez v. Pappas, 98 Wn.2d 835, 659 P.2d 475 (1983). In probate, the attorney-client relationship exists between the attorney and the personal representative of the estate. In re Estate of Peterson, 12 Wn.2d 686, 123 P.2d 733 (1942). The personal representative stands in a fiduciary relationship to those beneficially interested in the estate. He is obligated to exercise the utmost good faith and diligence in administering the estate in the best interests of the heirs. Hesthagen v. Harby, 78 Wn.2d 934, 481 P.2d 438 (1971). The personal representative employs an attorney to assist him in the proper administration of the estate. Thus, the fiduciary duties of the attorney run not only to the personal representative but also to the heirs. The Code of Professional Responsibility speaks directly to a lawyer's fiduciary responsibilities to his client with respect to fee arrangements. CPR EC 2-17 provides: The determination of a proper fee requires consideration of the interests of both client and lawyer. A lawyer should not charge more than a reasonable fee, for excessive cost of legal service would deter laymen from utilizing the legal system in protection of their rights. Furthermore, an excessive charge abuses the professional relationship between lawyer and client. On the other hand, adequate compensation is necessary in order to enable the lawyer to serve his client effectively and to preserve the integrity and independence of the profession. We analyze the reasonableness of the fee charged by the Manza firm in the context of those fiduciary obligations arising out of the attorney-client relationship. Reasonableness of Fees Generally, this court will not interfere with an allowance of attorney fees in probate matters unless there are facts and circumstances clearly showing an abuse of the trial court's discretion. In re Estate of Belknap, 12 Wn.2d 643, 123 P.2d 358 (1942); In re Estate of Fetterman, 183 Wash. 410, 48 P.2d 638 (1935). The record before us in the present case is the same as the record before the superior court judge in his review of the court commissioner's decision. We are, therefore, in the same position as the superior court judge in determining the reasonableness of fees. In re Estate of Thompson, 133 Wash. 481, 485, 233 P. 941 (1925). In re Estate of Fetterman, supra. In re Estate of Peterson, 12 Wn.2d 686, 728, 123 P.2d 733 (1942) sets forth the criteria to be considered in evaluating attorney fee requests in probate proceedings: In fixing the amount to be allowed as a fee for the attorney of a decedent's personal representative, the court should consider the amount and nature of the services rendered, the time required in performing them, the diligence with which they have been executed, the value of the estate, the novelty and difficulty of the legal questions involved, the skill and training required in handling them, the good faith in which the various legal steps in connection with the administration were taken, and all other matters which would aid the court in arriving at a fair and just allowance. See also In re Estate of Bailey, 56 Wn.2d 623, 354 P.2d 920 (1960). The objectors based their challenge to the fee on similar factors listed in DR 2-106 of the Code of Professional Responsibility. The primary challenge to the fee involves the necessity of spending 364.5 hours in attorney time to probate the Larson estate. The objectors point out that the estate consisted of only one major asset, the timberlands, and presented no novel or difficult legal or administrative problems other than locating heirs in a foreign country. This was accomplished with the assistance of the Swedish Consulate with only minor difficulties. They also express concern over duplication of efforts resulting from two attorneys in the Manza firm sharing responsibility for the probate of the estate. In this regard, they also contest fees charged for the services of Patrick Manza, an attorney who was not admitted to the bar until some time after the Manza firm was retained in this matter. Counsel for the objectors stated in closing argument before the court commissioner: We have no objection particularly about the quality of the work, it's the redundancy and amount of time that was spent, not the amount of time that was required. The Court has heard expert testimony and that in response to the memorandum that was presented to us and to the Court that the fees were based on DR 2-106 that their fees were based on the criterion laid out therein and looking at the criterion, one of it is the basic starting point is "the amount of time required." It's not the amount of time spent for needless work done. Report of Proceedings, at 216. Specifically, the objectors point to a number of seemingly routine matters that occupied an inordinate amount of the Manza firm's time. For example, the $463,672.36 in proceeds from the sale of the estate's assets was invested in 14 savings accounts with a number of different local banks. This took approximately 47.4 hours of attorney time, billed at $75 per hour, with an aggregate fee for this service of $3,555. Preparation of inheritance and estate tax returns took approximately 52.6 hours at $75 per hour, resulting in $3,945 in fees. Expert Witnesses At the hearing on the fees, attorneys for the estate and the objectors presented expert testimony on the reasonableness of the fee. Marshall Adams and Elvin Vandeberg, two Pierce County attorneys, testified for the estate. Adams testified that $35,000 would be a reasonable fee. Vandeberg stated a reasonable fee would be $25,115.50. Neither Adams nor Vandeberg addressed the issue raised by the objectors which is the necessity of the hours. Instead, both experts based their opinions on the assumption that 364.5 hours were necessary to close the probate. With this assumption, both estate experts testified to the reasonableness of the fee by multiplying the 364.5 hours by the hourly rate charged. Witness Adams, in testifying, also relied on the assumption that the estate attorneys saved the estate $20,000 by avoiding the use of a real estate broker to sell the timberland. Adams gave this factor great weight. Yet, the record reveals it was the administrator, not the estate attorneys, who arranged for the services of the timber consultant in conducting the sale of the land. John R. Stair, an experienced Seattle attorney, testified as an expert for the objectors. He did not offer an opinion on what a reasonable fee would be. Rather, he testified to the amount of time he thought would be reasonably necessary to probate Larson's estate — 48 hours of a legal assistant's time and 131 hours of a lawyer's time. Report of Proceedings, at 193. This was the only testimony in the record which addressed the factual issue raised by the objectors; i.e., the number of hours reasonably and necessarily required to probate this estate. Investment of Proceeds Estate attorneys, in assisting the personal representative in the management of the estate assets, owed a fiduciary duty to the heirs to maximize the rate of return on the assets. See Allard v. Pacific Nat'l Bank, 99 Wn.2d 394, 663 P.2d 104 (1983). The record shows they breached this duty. The following is a summary of the time expended and the hours charged during which estate funds were deposited in 14 savings accounts, subsequently withdrawn and deposited and redeposited in numerous certificates of deposit and treasury bills: The estate lawyers spent substantial amounts of time in depositing over $400,000 in proceeds from the sale of the real estate in various savings accounts paying only 5 ¥2 percent interest. Acting upon the advice of the attorney for the Swedish heirs, the estate lawyers finally used these funds to secure treasury bills and certificates of deposit which achieved a much higher rate of return. The time records on which the lawyers base their fee clearly establish that the personal representative was billed $75 per hour for approximately 47.4 hours of attorney time in depositing and redepositing these funds. Uncontroverted expert testimony stated a general practitioner with approximately 3 hours' time utilizing outside services, such as a good bank investment department, could have invested the proceeds from the sale of the real estate using treasury notes or other investment vehicles whereby amounts can be withdrawn without penalty. The estate attorneys breached their fiduciary obligations to the heirs by failing to seek a more beneficial rate of return on the short-term investment of these funds and by charging for excessive amounts of time spent in investing estate moneys. Preparation of Tax Returns The administration of this estate required federal estate and income tax returns, and a Washington inheritance tax return. The administrator's expert witness stated the returns did not require calculation of complicated deductions or exemptions. Report of Proceedings, at 116. The following is a summary of the days during which preparation of the tax returns appears to be the primary legal service. Inheritance and Estate Tax Returns The testimony by the estate's expert witness, Marshall Adams, indicates that estate tax returns prepared by the Manza firm in 50 hours, could have been prepared in 16 hours by a reasonably experienced probate attorney. We agree with Adams, In re Estate of Enos, 69 Ill. App. 3d 129, 386 N.E.2d 1147 (1979). Other courts which have reviewed claims of excessive hours have looked at such factors as the amount of time actually spent as compared to the amount of time an experienced attorney would spend, the duplication of work by attorneys or staff, and the amount of attorney time spent on administrative tasks. See Larionoff v. United States, 365 F. Supp. 140 (D.D.C. 1973); Bowl Am., Inc. v. Fair Lanes, Inc., 299 F. Supp. 1080 (D. Md. 1969); Advance Business Sys. & Supply Co. v. SCM Corp., 287 F. Supp. 143 (D. Md. 1968), aff'd, 415 F.2d 55 (4th Cir. 1969), cert. denied, 397 U.S. 920 (1970); Henlopen Hotel Corp. v. Aetna Ins. Co., 251 F. Supp. 189 (D. Del. 1966); In re Estate of Bacheller, 437 S.W.2d 132 (Mo. Ct. App. 1968); In re Estate of Fraiman, 408 Pa. 442, 184 A.2d 494 (1962). The attorney responsible for the probate of this estate testified that his primary area of practice involves personal injury and wrongful death. The testimony is uncontro-verted that an inordinate amount of time was spent on investing estate moneys and preparing returns for an estate that presented no difficult or complex legal or administrative problems. Reason and fairness compel us to observe that clients should not be expected to pay for the education of a lawyer when he spends excessive amounts of time on tasks which, with reasonable experience, become matters of routine. In re Estate of Fraiman, supra. Nor should a client be expected to pay for work that is duplicative. Larionoff v. United States, supra; Bowl Am., Inc. v. Fair Lanes, Inc., supra; Advance Business Sys. & Supply Co. v. SCM Corp., supra; Henlopen Hotel Corp. v. Aetna Ins. Co., supra. A review of the record indicates that Michael Manza and Patrick Manza duplicated their efforts. At times they worked together on the same project or attended the same ex parte court hearing. Moreover, an attorney is not entitled to fees at professional legal rates for tasks that should be performed by staff, such as depositing checks in a bank. In re Estate of Bacheller, supra. The record reveals that Patrick Manza spent much of his time engaged in matters which could have been done by the law firm staff, such as trips to the Internal Revenue Service to pick up forms and trips to different banks to deposit funds. When a probate attorney elects to base his fees primarily on the number of hours worked multiplied by an hourly rate, his fiduciary obligations dictate that he charge the estate only for those hours which are reasonably necessary in probating the estate. In defending against any objections to the fee raised by interested heirs, the estate attorney must assume the burden of proving that the hours charged to the estate were necessary. The record in the present case clearly shows that the estate lawyers did not meet this burden. We, therefore, reverse and remand to the trial court the issue of the reasonableness of the attorney fee in probating the estate. In making this decision, the court should determine whether the hours billed to the estate by the Manza firm were reasonable and necessary in completing the probate of Mr. Larson's estate. In determining a reasonable fee, the court shall assume $75 is a reasonable hourly charge for this type of work by a competent attorney based on the testimony. The $75 an hour was a reasonable hourly charge, as Patrick Manza had performed the majority of the work while an intern and a relatively inexperienced attorney. This was not challenged on appeal. Fees Incurred in Defending Objection to Fees The court commissioner and superior court judge awarded the Manza firm $16,350 to be paid out of the estate for fees and costs incurred in defending against the objections to Manza's fees and the subsequent motion for reconsideration. The objectors contend this award violates public policy by penalizing victimized parties from legitimately challenging attorney fee requests in probate proceedings. We agree. The record indicates that part of the attorneys' time spent in preparation to meet the objections was included in the original fee request of $23,145. The court commissioner then awarded an additional $10,000 to the estate lawyers for attorney fees for preparation on objections and for trial on the reasonableness of fees. We set this award aside. In defending a challenge to a requested attorney fee in a final report in probate, the attorney is a real party in interest. In re Estate of Peterson, 12 Wn.2d 686, 714, 123 P.2d 733 (1942). In In re Adamec, 100 Wn.2d 166, 667 P.2d 1085 (1983), we held, in the context of guardianship pro ceedings, fees incurred by an attorney in defending his own interest could not be awarded under RCW 11.92.180. Similarly, we have denied recovery of expenses incurred by the executor of an estate when the expenses were incurred in her own interest, and not for the benefit of the estate. In re Estate of Riemcke, 80 Wn.2d 722, 497 P.2d 1319 (1972). The only issue in the hearing on the final report in the instant case was the attorney fee. The attorneys' defense to the objections served only their own interests and in no way worked to the benefit of the estate. Indeed, under the trial court ruling, the value of the estate was reduced in direct proportion to the amount the court increased the attorney fee. We reverse the Court of Appeals and the trial court and hold that an attorney in probate is not entitled to additional fees for attorneys and experts in proving the reasonableness of his fee in the final report. The estate attorneys are entitled to a reasonable attorney fee for the preparation on the first two objections, provided such time is not included in the 364.5-hour affidavit. Objectors' Fees Finally, we observe that on remand the objectors should be awarded attorney fees for the trial and appeal of this case under RCW 11.76.070. While the award of attor ney fees under the statute is discretionary, persons objecting to the final report are entitled to such an award to the extent the items in the report which are disapproved benefit the estate. In re Estate of Riemcke, supra; In re Estate of Hamilton, 73 Wn.2d 865, 441 P.2d 768 (1968). The trial court should, on remand, determine an appropriate attorney fee award to the objectors for their services in the trial and appellate courts. Along with the factors enumerated in CPR DR 2-106 (B), the trial court should consider the overall benefit, if any, to the estate of the objectors' actions. Conclusion The area of probate is particularly subject to attorney fee abuse when the estate involved is substantial and the lawyer is reasonably assured of favorable results and payment. See Brown, Some Observations on Legal Fees, 24 Sw. L.J. 565 (1970). An estate attorney must assume the burden of proving that the hours charged to the estate were reasonable and necessary. We, therefore, reverse and remand the issue of reasonableness of fees to the trial court. We also hold that an attorney in probate is not entitled to an additional fee in proving the reasonableness of his fee in the final report. Finally, we hold that if the objectors here can demonstrate an overall benefit to the estate, they are entitled to reasonable attorney fees pursuant to RCW 11.76.070. Cunningham and Hamilton, JJ. Pro Tern., concur. The record indicates that the Superior Court simply adopted the commissioner's findings of fact and conclusions of law as its own. We believe that the superior courts, in reviewing decisions of court commissioners pursuant to RCW 2.24.050, should enter their own findings of fact and conclusions of law into the record. See In re Smith, 8 Wn. App. 285, 505 P.2d 1295 (1973). CPR DR 2-106(B) provides: "A fee is clearly excessive when, after a review of the facts, a lawyer of ordinary prudence would be left with a definite and firm conviction that the fee is in excess of a reasonable fee. Factors to be considered as guides in determining the reasonableness of a fee include the following: "(1) The time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly. " (2) The likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer. " (3) The fee customarily charged in the locality for similar legal services. "(4) The amount involved and the results obtained. •" (5) The time limitations imposed by the client or by the circumstances. "(6) The nature and length of the professional relationship with the client. "(7) The experience, reputation, and ability of the lawyer or lawyers performing the services. "(8) Whether the fee is fixed or contingent.11 This is clear from the testimony of attorney Michael Manza: "Q Now, what particular problems were entailed with respect to the sale of this real estate? "A Well, I had been approached by several people interested in buying the land, I was approached by a fellow named Blair and other people and I was, I think I was also called by Mr. Turlis. I told him that we were going to try to sell the property but we didn't know how we were going to do it. I had conferences with Mr. Swanson, several conferences with him on whether we should retain a real estate broker or was there some other way to go. Mr. Swanson told me that he would go down to the Department of Natural Resources, that somebody he had talked to in Eatonville suggested that he go to the Department of Natural Resources in Olympia and that there might be an alternate way other than selling the property through a real estate broker. Mr. Swanson came back and told me that he had been referred to several professional forestry service companies, one of them being Mr. Winn's company, so we contacted Mr. Winn." Report of Proceedings, at 39. RCW 11.76.070 provides: "If, in any probate or guardianship proceeding, any personal representative shall fail or neglect to report to the court concerning his trust and any beneficiary or other interested party shall be reasonably required to employ legal counsel to institute legal proceedings to compel an accounting, or if an erroneous account or report shall be rendered by any personal representative and any beneficiary of said trust or other interested party shall be reasonably required to employ legal counsel to resist said account or report as rendered, and upon a hearing an accounting shall be ordered, or the account as rendered shall not be approved, and the said personal representative shall be charged with further liability, the court before which said proceeding is pending may, in its discretion, in addition to statutory costs, enter judgment for reasonable attorney's fees in favor of the person or persons instituting said proceedings and against said personal representative, and in the event that the surety or sureties upon the bond of said personal representative be made a party to said proceeding, then jointly against said surety and said personal representative, which judgment shall be enforced in the same manner and to the same extent as judgments in ordinary civil actions."

The opinion of the court was delivered by Hoyt, J. Upon the motion to dismiss the appeal in this cause, it was made to appear to this court that the action was instituted in the probate court, and was there a contest between the executor of an estate and one claiming adversely, as to whether or not certain real estate should be included in the inventory of the property of said estate. When this fact appeared, suggestion was made to counsel that the question of the jurisdiction of the probate court to hear and determine such a controversy was the material inquiry which the court would enter upon in deciding the motion to dismiss; and upon such suggestion argument was had and authorities cited, and we shall, therefore, examine the question. ' It is conceded thatif the probate court had no authority to institute the action, by reason of want of jurisdiction of the subject-matter, then the superior court and this court could get no jurisdiction by way of appeal therefrom. That the probate court is without jurisdiction to try the title to property as between the representatives of an estate and strangers thereto is too well established by the authorities to require argument. See Schouler, Executors and Administrators, § 236; Lynch v. Divan, Ex’r, 66 Wis. 490; Budd v. Hiler, 27 N. J. Law, 43; Snodgrass v. Andrews, 30 Miss. 472; 64 Am. Dec. 169; Theller v. Such, 57 Cal. 447. In the case at bar, the person claiming adversely to the estate was the husband of the deceased party, and it appears that this fact was thought to affect the question. We, however, do not think so. For while it is true that the probate court has jurisdiction to determine the claims to property as between those interested in the estate, this authority only goes to the extent of determining their relative interests as derived from the estate, and not to an interest claimed adversely thereto. In the case before us the husband, though interested in the estate of his deceased wife, was, so far as the claim he was attempting to assert, an entire stranger thereto. See Budd v. Hiler, above cited. The probate court had no jurisdiction of the subject-matter of the action, from which it follows that the higher courts could get no jurisdiction on appeal. It only remains to determine the character of the order to be entered. In the appellate courts of some of the states it is the practice, in cases like this, to simply dismiss the appeal and leave the judgment of the court below to stand in form as a judgment in force. These say that as the judgments are upon their face absolutely void, they will not take jurisdiction even to reverse them. Other appellate courts, however, take the ground that as they have the power to clear their own records of objectionable entries, even though as standing thereon thej'’ are absolutely void, they have like power to set aside like void entries in the inferior courts when the form of removing such void entries to such appellate courts has been complied with. We think the latter practice the better one. See Lynch v. Divan, ExT, above cited. A judgment, unreversed, though void upon its face, may seriously embarrass the person against whom it is in form rendered, though it can, of course, be of no benefit to the person who has secured it. This being so, such judgment should not be allowed to stand. The appeal in this case must be dismissed, and the judgments in the superior court and in the probate court reversed; and such probate court must proceed in the administration of the estate in question in accordance with law. The appellant will recover costs of this court, and the appellee the costs in the superior court. ANDers, C. J., and Scott and Stiles, JJ., concur. Dunbar, J., not sitting.

Donworth, J-. Plaintiff brought this action to recover damages for personal injuries sustained while a patient in Harrison Memorial Hospital at Bremerton, Washington. The defendants are the corporation, which operated the hospital, Evelyn G. James, a practical nurse employed by the hospital, Dr. Kenneth P. Jackson, and his associate, Dr. George Whitacre. The action was tried to the court sitting with a jury. At the close of plaintiff’s evidence, each of the defendants challenged the sufficiency of the evidence and moved to dismiss the action with prejudice. The trial court sustained the challenges and granted the motions to dismiss. Plaintiff moved for a new trial. The motion was denied and judgment dismissing the action was entered on October 15, 1951. From that judgment, plaintiff has appealed. Appellant, an eighty-year-old widow, suffered a slight stroke early on the morning of April 22, 1950. When she awoke from her sleep, she was extremely dizzy but managed to rap on the wall to summon her son, Harry Freed. He called Dr. Kenneth P. Jackson to care for his mother. Dr. Jackson assigned his assistant Dr. George Whitacre to the case. When Dr. Whitacre arrived at appellant’s home, he found that she had suffered a paralysis of the left side of the face which prevented her from swallowing. She had control over both her arms and legs. Because of appellant’s inability to swallow or take nourishment through the mouth, Dr. Whitacre decided she should be taken to the hospital, where she could be given proper care. An ambulance was called and appellant was admitted to the Harrison Memorial Hospital about noon on that day. Dr. Whitacre gave instructions for her care over the telephone. He ordered an injection of two grains of sodium luminal shortly after admittance, along with an intravenous injection of glucose and saline solution. He further prescribed additional doses of two grains of sodium luminal at nine o’clock p. m. and again at two o’clock the following morning. These instructions were placed on the patient’s hospital chart. At six o’clock the following morning, appellant was awakened by respondent Evelyn G. James, a practical nurse employed by the hospital, who had come on duty at eleven o’clock the previous night. The nurse placed a wash basin at the right of appellant’s bed, told her to wash, and left the room. Appellant had to change her position to reach the wash basin. She sat up, swung both her legs over the side of the bed, and reached for the basin. In so doing, she slipped off the edge of the bed and fell to the floor. She then screamed.for help, and four nurses answered her call and lifted her back into bed. As a result of the fall, appellant suffered an intertrochanteric fracture of the left hip. The fracture did not heal prop erly after it was set the first time, and it was necessary to correct the nonunion of the fracture with a bone-grafting operation in November, 1950. At the time of the trial, she was able to walk for a few minutes with the aid of crutches but used a wheel chair principally for moving around the house. In reviewing the evidence in this case, we are- governed by the .rule that a motion for nonsuit admits the truth of the evidence of the party against whom the challenge is made and all inferences reasonably drawn therefrom and requires that the evidence be interpreted most strongly against the challenger and in the light most favorable to the opposing party. Derr v. Bonney, 38 Wn. (2d) 678, 231 P. (2d) 637; Hardung v. Green, 40 Wn. (2d) 595, 244 P. (2d) 1163. In assignments of error two and three, appellant claims that the trial court erred in sustaining respondent doctors’ challenge to the sufficiency of the evidence and in dismissing the action as to them. We have held that, before a physician or surgeon may be held liable for malpractice, he must have done something in the treatment of his patient which the recognized standard of medical practice in his community forbids in such cases, or he must have neglected to do something required by that standard. In order to sustain a judgment against a physician or surgeon, the standard of medical practice in the community must be shown, and, further, that the doctor failed to follow the methods prescribed by that standard. Negligence on the part of the physician or surgeon by reason of his departure from the recognized standard of practice must be established by medical testimony. An exception to this rule is recognized where the negligence is so grossly apparent that a layman would have no difficulty in recognizing it. Fritz v. Horsfall, 24 Wn. (2d) 14, 163 P. (2d) 148, and cases cited; Derr v. Bonney, supra. Appellant argues that the instant case falls within the exception to the rule, citing Olson v. Weitz, 37 Wn. (2d) 70, 221 P. (2d) 537, and earlier decisions of this court. We do not think that those decisions are applicable, because there the negligence involved was so obvious as to require no expert testimony. For example, in the Olson case a doctor had attempted to set a fractured arm. When the cast was removed, the arm was so crooked that the patient’s friends noticed it. The complaint charged respondent doctors with negligence in failing to instruct the hospital’s employees to install bed rails on appellant’s bed while she was a patient there. No testimony was presented as to #when or under what circumstances the standard of medical care in the community required the use of bed rails, except that Dr. Whit-acre testified that during her hours of sleep it would be a good idea to have a bed rail up to “keep her from rolling out of bed.” Appellant was not injured while she was asleep, so even viewing this testimony in the light most favorable to her, it had no application to the facts of this case. As to the manner in which the accident occurred, appellant on cross-examination testified: “Q. Did you reach out to this stand with your right hand or left hand? A. (indicating right hand) Q. Your right hand. And you reached over while you were still lying down in bed? A. No, I tried to sit up and I swayed and I said, T don’t think I can make it,’ and down I went. Q. Before you did that, did you try to reach the stand—I will call it, ‘the stand’? A. No. Q. You then sat up deliberately in bed? A. (Nodding head affirmatively) Q. And then did you swing your legs over and hang them over the side of the bed? A. (Nodding head affirmatively) Q. Say, ‘Yes,’ or ‘No.’ A. Well, she can see me. (Referring to reporter) Q. You swung your legs over and sat on the edge of the bed with your legs hanging over? A. Yes. Q. As I recall it, you sat there a few seconds before you slid on down? A. Not very long—I slid right off. Q. As I recall, you said, ‘a few seconds.’ A. Well, call it whatever you want to. Q. I don’t want to argue with you. I’ve been checking back what you told us in the deposition. At any rate, you sat there and slid down? You didn’t roll off, you slid off? You just sat there and slid down? A. Slid and landed on this side. (Pointing) ” Appellant, in connection with her claim of negligence on the part of respondent doctors, refers to the fact that she was given two grains of sodium luminal when she was admitted to the hospital at noon on Saturday and similar doses at nine p. m. and two a. m. Dr. Whitacre testified that the purpose was to cause the patient to sleep. The only other testimony as to the effect of administering this drug was given by Dr. Diefendorf, who was the surgeon who operated on appellant’s hip after her fall. He stated that normally its effect would last “from several hours to perhaps six or eight hours” and that it might make a patient a little hazy. Not only is there no testimony that appellant was affected by this drug at the time of her accident, but her own testimony (quoted above) indicates that at that time she was alert and was fully aware of what was taking place. She testified that she’ did not roll out of the bed but swung her legs over the side and slid off. We, therefore, conclude that the trial court did not err in sustaining the challenge of respondent doctors to appellant’s evidence. Next, we consider the challenge of respondent nurse and the corporation operating the hospital. For convenience, we shall refer to them as the nurse and the hospital. The complaint alleged that respondent nurse and the hospital were guilty of several different negligent acts. The only ones appellant relied on at the trial were: (1) that the hospital negligently failed to furnish appellant with a bed equipped with bed rails; (2) that the nurse negligently failed to install bed rails; and (3) that she negligently ordered the patient to wash and left her unattended though she should have known the patient was paralyzed, helpless, and unable to comprehend or communicate with others. The evidence produced by appellant showed that the bed in which she was placed was not equipped with bed rails at any time prior to her accident. This in itself is not proof of negligence. There must be proof that appellant was in a helpless condition which was known to the nurse and the hospital, and that reasonable care under such circumstances required the installation of bed rails. As was said in Smith v. Simpson, 221 Mo. App. 550, 288 S.W. 69: “It is not disputed that all the authorities hold that private hospitals owe to their patients such ordinary care and attention as the mental and physical condition of such patients reasonably requires. The law demands reasonable care, such care as a reasonable man would take under the circumstances existing, but no man is required to take measures against a danger which the circumstances as known to him do not suggest as likely to happen.” There being no testimony that reasonable care on the part of the nurse or the hospital under the circumstances shown in this case required the installation of bed rails, the evidence was insufficient to warrant the submission of this issue to the jury. • The third ground of negligence stated above was that the nurse did not exercise reasonable care when she placed the wash basin back of appellant’s bed and instructed her to wash and then left her unattended. Appellant séeks to hold the nurse liable for this act and also her employer, the hospital, on the respondeat superior theory. Appellant produced no testimony, either by expert or lay witnesses, to the effect that the standard of ordinary care and attention required of the nurse and hospital under the circumstances of this case was not met because the nurse placed a wash basin in a position which was somewhat inconvenient for the patient to reach. Nor has our attention been called to any decisions holding that such conduct supports a prima facie case of negligence sufficient to be submitted to a jury. Appellant seeks to predicate negligence upon her alleged paralyzed and helpless condition and her alleged inability to communicate with others. The evidence does not support this contention. It shows that the paralysis affected only one • side of her face and impaired the ability to swallow. She had normal control over her arms and legs. That she was able to communicate with others is shown by the fact that im mediately after her fall, as she testified, she “screamed and hollered” for help. Appellant also assigns as error the ruling of the trial court which excluded certain testimony of her son, Harry Freed. He had previously testified that there were no bed rails on appellant’s bed at any time on Saturday, which was the day before the accident. Appellant’s counsel asked: “Anything done about putting bedrails on the bed after you arrived Sunday afternoon?” An objection was made on the ground that what was done after the accident had no bearing on the issue of negligence. The objection was sustained. Appellant’s counsel then said he wished to negative the possible contention that the bed rails might have been placed on the bed Saturday night after the son left the hospital. He made an offer of proof in the absence of the jury. Respondent’s objection was sustained, and the proposed testimony was excluded. The general rule is that evidence of subsequent repairs is not admissible to prove prior negligence. Hatcher v. Globe Union Mfg. Co., 170 Wash. 494, 16 P. (2d) 824; also, 178 Wash. 411, 35 P. (2d) 32, and cases cited. Appellant now claims that the evidence should have been admitted under one of the recognized exceptions to the general rule. Under these exceptions, .evidence of subsequent repairs may be admitted for the limited purposes of showing dominion or control over the instrumentality or to show the practicality of the use of a safeguard. It is true that Dr. Whitacre, testifying as an adverse witness, was asked if any instructions had been given about the necessity of installing bed rails. He replied: “As I recall, shortly after admission when I saw her, there was a bed rail in place at her bedside.” Appellant was not bound by this answer, even assuming that it tended to prove that there were bed rails on the bed at the time of the accident. No witness testified that any bed rails were attached to the bed at the time of the accident. Appellant herself later testified that they were not. Thus, the excluded evidence was not material. Furthermore, appellant’s counsel did not inform the trial judge that the proposed testimony was being offered only to “impeach” Dr. Whitacre or to show dominion or control over the bed rails or the practicality of installing them. Appellant is bound by the ground for admissibility stated at the trial and may not assert other grounds for the first time in her brief on appeal. Tomlinson v. Bean, 26 Wn. (2d) 354, 173 P. (2d) 972, is directly in point. There, this court in an unanimous En Banc decision stated the applicable rule regarding the making of offers of proof as follows: “The principle upon which we decide this case is that it is the duty of a party to make clear to the trial court what it is that he offers in proof, and the reason why he deems the offer admissible over the objections of his opponent, so that the court may make an informed ruling. If the party fails to so aid the trial court, then the appellate court will not make assumptions in favor of the rejected offer. State v. Williams, 12 Wn. (2d) 16, 120 P. (2d) 502; Booth-Kelly Lbr. Co. v. Williams, 95 Ore. 476, 188 Pac. 213. See, also, 6 Jones, Commentaries on Evidence (2d ed.), § 2526; 26 R. C. L. 1032, Trial, § 35.” (Italics ours.) Since no valid ground for the admission of this offer of proof was submitted to the trial court, we cannot hold that its rejection was error. Appellant assigns error to the trial court’s ruling when granting the motions for a nonsuit that appellant was guilty of contributory negligence as a matter of law. We do not deem it necessary to discuss this claimed error, because a careful reading of the trial court’s oral opinion shows that it granted the motions for nonsuit because of insufficiency of appellant’s evidence to carry the case to the jury. As stated above, the trial court was correct in dismissing the action as to all respondents upon that ground. Finding no substantial merit in the other assignments of error, the judgment is affirmed. Grady, C. J., Schwellenbach, Hamley, and Finley, JJ., concur.

Finley, J. This is an eminent domain proceeding brought by the state of Washington to condemn and appropriate a right of way across the premises of the defendants, pursuant to RCW 8.04.010 et seq., for the purpose of constructing a new limited-access highway under the provisions of RCW 47.52.010 et seq. The proposed new limited-access highway (designated as part of secondary state highway No. 11-G) extends a distance of approximately five miles from Ephrata to secondary state highway No. 11-G, which connects Soap Lake and Moses Lake in Grant county. The land condemned is a part of the defendants’ twenty-acre farm, which is rectangular or oblong in shape. The farm is bordered on the westerly side by a county road and on the northerly side by a city street, which marks the city limits of Ephrata. The right of way involved is sixteen hundred feet long and one hundred fifty feet wide. It diagonally bisects the defendants’ farm and embraces a total of 4.42 acres. The defendants will be left with a 10.6 acre tract of land on the north side of the highway, and a 4.7-acre tract of land on the south side of the highway. The north tract will continue to be served by the city street. The tract to the south will continue to be served by the county road which will provide access to the new highway. Defendants will have one approach (twenty feet in width) from their property on each side of the highway for the restricted purpose of crossing the highway with farm machinery. The state introduced in evidence its complete plan for constructing the highway through the defendants’ property. Testimony was taken relative to the nature of the highway project, the value of the land taken, and the severance damages to the land remaining in the north and south tracts. The estimates of total damages range, on behalf of the state, from $10,958 to $13,610; and on behalf of defendants, from $25,600 to $40,000. Much of this testimony was based upon the theory that the best and highest use of the farm acreage would be for subdivision purposes. The case was submitted to a jury, which returned a verdict of nineteen thousand dollars. The state has appealed. The principal question raised is whether there has been a constitutional taking of an alleged easement of access to the highway. It is well established that the owner of land abutting upon a conventional highway has an easement of ingress and egress. This has been treated as a property right, attached to the land. The courts unanimously hold that such an owner is entitled to just compensation if this easement or property right is taken or damaged. See Walker v. State, 48 Wn. (2d) 587, 295 P. (2d) 328, and cases cited; State Highway Comm. v. Burk, 200 Ore. 211, 265 P. (2d) 783. However, where a new limited-access highway is established by condemnation in an area where no highway previously existed, there is no taking of an easement of access, because such an easement has never in fact existed. State Highway Comm. v. Burk, supra; State v. Clevenger (Mo.), 291 S. W. (2d) 57; Carazalla v. State, 269 Wis. 593, 70 N.W. (2d) 208, 71 N. W. (2d) 276; Schnider v. State, 38 Cal. (2d) 439, 241 P. (2d) 1; 43 A. L. R. (2d) 1068; Annotation, 43 A. L. R. (2d) 1068. See, also, articles entitled: The Limited Access Highway, 27 Wash. L. Rev. 111; and 13 Mo. L. Rev. 29; Freeways, 3 Stanford L. Rev. 298. As to the foregoing proposition, we quote from an illustrative discussion in the Stanford Law Review, supra, as follows: “Suppose the state buys up a completely new right-of-way for a freeway. Take the clearest case first. A’s land abuts against B’s land. Assume the public buys up a right-of-way for a freeway from B, extending along the boundary of his property, with A, but leaving a one-foot wide strip of land along the boundary line. Obviously, there is no change in A’s legal position. Now, suppose the state took B’s land right up to the boundary with A. Why should A’s rights suddenly change? The freeway was never intended, from its inception, to provide land service to A. Rather it was intended to be a traffic service road. The result must be that, since A never had a right of access across his property line before, and since no such right was even impliedly given to him by the state, he does not now have a right of access across his property line to the freeway. “What of B’s rights? Suppose a part of his land along his boundary line with A has been taken. B, of course, will be paid for the land actually taken. But should he also be paid for a right of access to the freeway? Again, a simple consideration of our rationale brings out the answer. The land service road concept is inapplicable. B was given no access to the public road. He therefore has acquired no right of access to be taken.” (3 Stanford L. Rev. 298, 307.) Thus, since the property owner has no easement, i.e., no right of access to the highway itself, it follows that an allowance of damages for the loss of such a nonexistent easement or right of access is unrealistic, unjustified in fact, and improper. As a necessary corollary, there being no easement, property abutting a limited-access highway has no commercial or frontage value so long as the highway is a limited-access one. Carazalla v. State, supra. There is, however, the important subsidiary, or closely related, question of severance damage to the remaining land after a limited-access highway is constructed, because, although severance damages are not dependent upon the existence of rights of access or an easement regarding such rights, the limited-access nature of the highway may cause a more significant or complete severance than the conventional highway. State Highway Comm. v. Burk, supra; State v. Clevenger, supra. We quote again from the article in the Stanford Láw Review, supra: “As a final case, consider the situation where the right-of-way purchased runs right through B’s land. In the case of a normal, unrestricted-access highway, B will be paid for the land actually taken and also ‘severance’ damage for the separation of the property. If the highway is to be of limited-access design, with B having no right of access, the severance of the two parcels will be more complete. B should be, and is, paid for this more complete severance, but this is on the basis of severance damage alone and not on any theory of right of access being denied.” (3 Stanford L. Rev. 298, 308.) The market value of the property remaining may be affected by the nature and the extent of the taking for the limited-access highway, the separation of a defendant’s land into different tracts, and the added inconvenience, if any, in managing the property and in going from one tract to the other. Additional circumstances to be considered in assessing net compensation are: the presence of the new highway; the modes of access provided, if any; the presence of existing streets, roads, and highways; and the reasonably probable uses of the remaining property in determining the question of special benefits, if any, to the defendants. But the severance damages must not be based upon any theory of a loss of access rights to the highway. State Highway Comm. v. Burk, supra; State v. Clevenger, supra. We find no material difference between the statutes of this state and those enacted in the states wherein the courts have upheld the validity and effect of limited-access legislation, as indicated by the authorities cited herein. The legislature of the state of Washington enacted the limited-access highway code in 1947, which is now designated as RCW 47.52. The pertinent statutes provide, in part, as follows: “47.52.001 Declaration of policy. Unrestricted access to and from public highways has resulted in congestion and peril for the traveler. It has caused undue slowing of all traffic in many areas. The investment of the public in highway facilities has been impaired and highway facilities costing vast sums of money will have to be relocated and reconstructed. It is the declared policy of this state to limit access to the highway facilities of this state in the interest of highway safety and for the preservation of the investment of the public in such facilities.” [Laws of 1951, chapter 167, §1, p. 451.] “47.52.010 ‘Limited access facility’ defined. For the purposes of this chapter a ‘limited access facility’ is defined as a highway or street especially designed or designated for through traffic, and over, from, or to which owners or occupants of abutting land, or other persons, have no right or easement, or only a limited right or easement of access, light, air, or view by reason of the fact that their property abuts upon such limited access facility, or for any other reason to accomplish the purpose of a limited access facility. Such highways or streets may be parkways, from which trucks, buses, and other commercial vehicles shall be excluded; or they may be freeways open to use by all customary forms of street and highway traffic.” [Laws of 1951, chapter 167, § 2, p. 452.] It is apparent that the expressed purpose of limiting access, as provided in the above statutes, is to promote safety on the highways of this state; that such legislation is a valid exercise of the police power is beyond question. State v. Burk, supra; Carazalla v. State, supra. An existing highway has been defined as follows: “RCW 47.52.011 ‘Existing highway’ defined. For the purposes of this chapter, the term ‘existing highway’ shall include all highways, roads and streets duly established, constructed, and in use. It shall not include new highways, roads or streets, or relocated highways, roads or streets, or portions of existing highways, roads or streets which are relocated.” [Laws of 1951, chapter 167, § 3, p. 452.] The legislature has also provided for the acquisition of private or public property and certain property rights, including rights of access, air, view, and light, in the manner authorized by law, for limited-access facilities. RCW 47.52-.050. [c/. chapter 202, § 4, Laws of 1947, p. 870.] Finally, the legislature has declared: “No existing public highway, road or street shall be constructed as a limited access facility except upon the waiver, purchase, or condemnation of the abutting owner’s right of access thereto as herein provided. In cases involving existing highways, if the abutting property is used for business at the time the notice is given as provided in RCW 47.52.072, the owner of such property shall be entitled to compensation for the loss of adequate ingress to or egress from such property as business property in its existing condition at the time of the notice provided in RCW 47.52.072 as for the taking or damaging of property for public use.” (Italics ours.) RCW (Sup. 1955) 47.52.080 [cf. Laws of 1955, chapter 54, § 2, p. 373.] Thus, after defining an existing highway (RCW 47.52-.011), the legislature has provided in general terms for the taking of certain property rights, including access, air, view, and light, in the manner authorized by law, for the construction of limited-access facilities (RCW 47.52.050). Then, in specific terms the legislature has stated that compensation shall be paid for the taking of an abutting owner’s right of access to an existing highway (RCW (Sup. 1955) 47.52.080). But no provision is made relative to “taking” the above-mentioned rights in connection with a new limited-access highway. The maxim, expressio unius est exclusio alterius, seems to be applicable. “Freeways are designed to provide rapid transit for through traffic, uninterrupted by vehicles or pedestrians from private roads and intersecting streets, and the word ‘freeway,’ as used in the Streets and Highways Code, means a highway with respect to which owners of abutting lands have no rights of access or only limited rights of access. (Sts. & Hy. Code, § 23.5.) The Streets and Highways Code furnishes ample authorization for the construction of a freeway on land where no public way existed before without creating rights of direct access in favor of other property which, prior to the new construction, had no such rights of access. (Sts. & Hy. Code, §§ 100.1, 100.2, 100.3.) The provision of section 100.3 [cf. RCW 47.52.050] that a declaration creating a freeway ‘shall not affect private property rights of access, and any such rights taken or damaged within the meaning of Article I, section 14, of the State Constitution [cf. Washington Constitution, Art. I, § 16] . . . shall he acquired in a manner provided hy law,’ plainly refers to rights of access which exist prior to the establishment of the freeway and not to claimed rights which have had no previous existence and which could come into being, if at all, only by virtue of the new construction.” Schnider v. State, 38 Cal. (2d) 439, 442. (Italics ours.) Considering the similarity of the California statutes, the foregoing reasoning of the California court is particularly applicable to the problem before us. Clearly, there has been no specific declaration by our legislature of an intention to pay compensation for nonexistent property rights; i.e., access, air, view and light; furthermore, absent such rights, the condemnation proceedings herein do not violate Art. I, § 16, of our state constitution, which requires the payment of just compensation for the taking or damaging of property rights. The diminution in value of the remaining land, or severance damages, is controlled by RCW 8.04.080, which provides: “ . . . compensation . . . for the taking . . . thereof, together with the injury, if any, ... to the remainder of the lands, . . . after offsetting against . . . such compensation and damages the special benefits . . . accruing to such remainder by reason of . . . the use by the state of the lands ...” (Italics ours.) This statute requires compensation for the land actually taken. In addition, it provides for severance damages to the remainder based upon the added inconvenience of moving from one part of the land to the other, the separation of the land into different tracts, and other management problems. But again, in this context, loss or lack of access to the highway cannot be considered as a factor, because the right to use it is nonexistent. Offset against such compensation and severance damages are the special benefits, if any, — such as modes of access provided, the presence of existing streets or roads, the presence of the new highway, and the reasonably probable uses of the remaining land. Thus, as indicated, under proper instructions from the trial court, the limited-access character of the highway, maps and plans in relation thereto, should be called to the attention of the jury to enable it to make the above-mentioned determinations. With the above distinctions and principles of law in mind, we will now discuss appellant’s assignments of error. The first assignment is that the trial court erred in admitting testimony over appellant’s objection in regard to an alleged loss of access to the new limited-access highway. In the record there was much confusion between (a) the supposed easement or right of access to the highway and (b) the inconvenience of access from one part of the farm to the other after construction of the new limited-access highway. It would seem that the trial judge misconstrued the Burk case, supra, and our statutes; and, consequently, that he erred in ruling that the expert witnesses could testify as to loss of access to the highway.' Although it was not definitely established that these experts included any amount for loss of access in their estimates or opinions as to damages to the remaining property, it would seem that under the circumstances the line of questioning pursued was questionable, as it tended to emphasize to the jury the nonexistent easemént or loss of access to the highway. See State v. Clevenger, supra. The trial court’s instruction No. 12 emphasized to the jury the loss by the owner of access rights to the highway, and of the rights of air, view, and light. This constituted reversible error, because the claimed loss of the property rights of access, air, view, and light, were not proper issues in this case, for the reasons heretofore given. Appellant’s proposed instruction No. 1 read as follows: “No. 1. You are instructed that by law the State has a right to design and construct a ‘limited access facility’ which includes new highways, roads or streets or relocated highways, roads or streets or portions of existing highways, roads or streets which are relocated and over, from or to which owners or occupants of abutting land have no right or easement of access, light, air or view by reason of the fact that their property will abut upon the proposed ‘limited access facility’ or highway. “Therefore, you are instructed that since the remaining portion of respondents’ property never had a right of direct access to the proposed highway at any time heretofore you must not include in your verdict any sums whatever by reason of the fact that said remaining property will not have access to the proposed ‘limited access facility’ or new highway after same is constructed in use.” This proposed instruction No. 1 was a proper statement of the law. It should have been given. Respondents argue that instruction No. 12 was proper, because (1) it submitted to the jury only the issue of severance damages to the remaining property, and that they were entitled to such an instruction; and because (2) rights of access, air, view, and light are valuable property rights for which the state must pay compensation. Respondents cite Walker v. State, supra; and State ex rel. Veys v. Superior Court, 33 Wn. (2d) 638, 206 P. (2d) 1028. We find no merit in the first argument, because the issue of severance damages was properly submitted to the jury by other instructions which substantially conform with the views hereinabove expressed as to this aspect of the condemnation action. One of these instructions, No. 6, reads as follows: “Instruction No. 6 “I instruct you that in determining what compensation should be paid for damages, if any, for the injury or depreciation, if any, to the remainder of the lands, you may and should take into consideration the uses and purposes for which the land is adapted or suitable; the character and quality of the tract of which a part is taken; the shape and condition in which such lands are left; the conveniences for using the land before and after such taking, and such other burdens as you should find from the evidence are cast upon the remaining lands and which in your judgment, would affect the market value thereof. “Injury or depreciation to such remaining lands does not follow as a matter of law by the mere taking of property for public use, but must be found as a fact by the jury from the evidence, and its finding in this respect should be such amount in damages as the jury is able to find from the evidence that the remaining tract is damaged by the appropriation for the right of way.” As to respondents’ second contention, relative to instruction No. 12, we have already indicated that there are no easements of access, air, view, and light to a new limited-access facility. Walker v. State, supra, relied upon by respondents, is not in point, because we there considered property rights in relation to a conventional or an existing highway. State ex rel. Veys v. Superior Court, supra, cited by respondents, and State ex rel. Troy v. Superior Court, 37 Wn. (2d) 660, 225 P. (2d) 890, are not in point. Those two cases decided that, under the legislation then in effect, a limited access facility could be constructed only upon a new location; that property rights to an existing highway could not be affected thereby; and that the proposed construction in those two cases was not on a new location, but affected vested rights in an existing highway. The legislature has amended RCW 47.52 in such a manner as to abrogate the decisions in the two cited cases. The case of State v. Ward, 41 Wn. (2d) 794, 252 P. (2d) 279, was not cited by the appellant or by the respondents. The point there at issue is not involved in the case at bar. While there is some language in the Ward decision which may seem to be inconsistent with the views we have expressed herein and inconsistent with the better-reasoned, modern authority, we are convinced that the language to which we refer is dicta, and not binding upon us in the present instance. The next assignment is that the trial court improperly admitted expert testimony relative to the commercial value of highway frontage property located in Ephrata. This testimony would have been admissible if the case had involved an existing highway. Because it did not, and since there is no easement or right of access to the new limited-access highway, the subject property did not have commercial frontage, and the admission of testimony as to this was error. Carazalla v. State, supra. Appellant contends that the trial court erred in refusing to admit testimony relative to public auction sales of property similar to the subject property. Appellant made an offer of proof, tending to show that such auction sales were of recent occurrence, and that the property sold was located near the subject property and was comparable thereto. We specifically note that the trial court refused to admit this testimony solely on the ground that it was not indicative of fair market value. This was error. The general rule supported by the weight of authority is that evidence of the price received at a free and voluntary public auction is competent and admissible as some evidence of value where, presumably, a willing buyer meets a willing seller in open competition. 2 Orgel, Valuation under Eminent Domain (2d ed.) 592, § 140; see, also, Jackson v. Raisor, (Ky., 1952) 248 S. W. (2d) 905; In re Jennings Street, 201 N. Y. S. 799, 207 App. Div. 170; 5 Nichols on Eminent Domain (3d ed.) 291, § 21.32; 20 Am. Jur. 340, § 373; 31 C. J. S. 886, § 182. However, the authorities cited, recognize that forced sales are not admissible as evidence of value (cf. Finch v. Grays Harbor County, 121 Wash. 486, 209 Pac. 833, 24 A. L. R. 644). Here, so far as the record reveals, we are not concerned with a forced sale. The authorities recognize a distinction between sales involving the latter factor and sales, either auction or otherwise, which do not involve this factor. Respondents rely upon Donaldson v. Greenwood, 40 Wn. (2d) 238, 242 P. (2d) 1038, where this court stated: “ ‘Fair market value’ means neither a panic price, auction value, speculative value, nor a value fixed by depressed or inflated prices.” Admittedly, the italicized words are dicta, but in any event the distinction is readily apparent. Since the trial judge rejected the testimony relative to auction sales on the sole ground that it was not indicative of fair market value, we desire to make it clear that we have passed only upon that limited issue. Whether or not, upon the new trial, appellant can prove (1) that the public auction sales were free and voluntary, (2) that the property sold was not too far removed from the subject property and was comparable thereto, and (3) that the sales were not too remote in time, are issues which we do not pass upon. These are matters as to which it is difficult to formulate specific rules, and they must rest largely in the discretion of the trial court, to be reviewed only for manifest abuse. In re Northlake Avenue, 96 Wash. 344, 165 Pac. 113; see, also, Annotation, 118 A. L. R. 904. For the reasons heretofore indicated, the judgment should be reversed and the cause remanded for a new trial. It is so ordered. Hill, C. J., and Ott, J., concur. Mallery, J., concurs in the result.

Chadwick, J. On September 1, 1908, a decree of divorce was entered in the superior-court of King county, dissolving the bonds of matrimony then existing -between appellant and respondent. On October 1, 1908, appellant filed her petition under the statute, praying for an order vacating the decree, and for permission to withdraw her -answer and defend the suit. For the sake of the discussion of -the only legal proposition involved, we deem it necessary to set out, in part at least, the facts alleged- in her petition. She sets up the original complaint, in which her husband had asked a divorce upon the ground that she had treated • him with extreme cruelty, had refused to live with him,’ had heaped personal indignities upon him,- rendering his life burdensome, and that there was such incompatibility -of temper between them that they could'no longer live together as husband and wife. No facts were alleged in his complaint that would have saved the pleading from an attack by general demurrer. To this complaint she had entered a general denial. The trial was had without her presence, and a decree entered, so far as the record shows, upon the respondent’s testimony alone. She further alleges that, prior to November, 1907, the relations existing from • the time of their marriage, in March, 1882, had been most amicable; that' she had been-a dutiful wife, and that he had been a fond, faithful, and indulgent husband; that from the time mentioned he began to grow cold and distant, and cease to manifest that love and affection that had so .long characterized .his conduct toward her; that in June, 1908; he requested her to procure a divorce ; that this she refused to do; that his inattention and neglect then became more marked, until' finally, with intent to deceive ;her as, to. his real, motive, he. more than once threatened to commit suicide unless she consented to allow him to procure a divorce; that he procured a revolver and made a pretended attempt to take his life; that his conduct so terrorized her and their children that she was reduced in health and so shocked in her nervous system that she was induced to believe that he would commit suicide, and so she yielded to his demand; that thereafter, on August 28, he sent an attorney, whom he had employed, to her with a copy of the summons and complaint, together with an answer which he had prepared; that she signed the answer; that respondent thereafter telephoned her that he would take his life if she resisted the divorce or appeared in the courtroom at the hearing, all of which she believed, and for that reason she did not appear. She further alleges, that all of the’ facts set forth in his complaint were false and untrue; that his threats of suicide were made with fraudulent intent to cover his real purpose, which was to marry another, a purpose he had thereafter admitted to her; that she has a good defense to his complaint, and that he has neglected her and their children, so that they are in necessitous circumstances. It would seem that this recital were enough to warrant the court in vacating the decree, and we take it that it would have done so but for its conception of the case of Metler v. Metler, 32 Wash. 494, 73 Pac. 535, wherein this court said: “The reasons for making this distinction between judgments in this particular action and judgments in ordinary actions are apparent. A decree of divorce affects the status of the parties, both with respect to their relations to one another and their relations to the public. By the terms of the statute, divorced persons may lawfully marry, after a limited time from the rendition of the decree, and to permit its vacation is to make it possible, under the guise of law, to inflict injury and suffering upon persons whose innocence entitles them to every protection the law can afford. It is therefore highly important, not only for the sake of the parties thereto, but also for the sake of such persons, that decrees of divorce should not be granted except for specific causes provided by law,' proved and found by the court, in actions where the court has undoubted jurisdiction over the subject-matter and.the parties; but it is also equally important that the decree, when once granted, be not disturbed by the court granting it.” The power of a court having jurisdiction of the parties to vacate a decree of divorce, once formally entered, is therefore squarely before us. In the Metler case the court also said: “The court can, of course, lawfully vacate such decree when entered without jurisdiction, and perhaps where it is the result of fraud practiced on the court or the other spouse.” The Metier case was referred to in McDonald v. McDonald, 34 Wash. 293, 75 Pac. 865, wherein it was said: “It would seem to be violative of fundamental principles to hold that a divorce decree, fraudulently procured, may not be timely assailed by the innocent party to the proceedings.” It would seem therefore that, notwithstanding the doctrine frequently announced that a decree of divorce will never be vacated because of the probable evil consequences following the severance of a new relation, bearing as it might after-begotten children, the better rule is that, notwithstanding the decree, a court will reopen and try the case if the decree is the result of a fraud practiced upon the other party or upon the court. This rule is admitted in the case of Lewis v. Lewis, 15 Kan. 181, cited and relied upon by respondent, although the court refused to reopen the decree, finding no irregularity in the proceeding. This case, however, was distinguished in the later case of Hemphill v. Hemphill, 38 Kan. 220, 16 Pac. 457, wherein the rule here announced was declared. In the case of Whitcomb v. Whitcomb, 46 Iowa 437, cited by respondent, the distinction between the force of a decree entered upon constructive service, the statute having been strictly complied with, and a fraud upon the party or the court, is clearly pointed out. It was held that the decree would not be vacated 'where summons was regularly had by publication, but that the court had power in all cases to vacate a decree obtained by fraud, even though the plaintiff may have subsequently married and become a parent. The case of Ewing v. Ewing, 24 Ind. 468, also relied upon by respondent, followed the case of McQuigg v. McQuigg, 13 Ind. 294. In the case of Earle v. Earle, 91 Ind. 27, after a careful review of all the authorities, the court held that a decree of divorce obtained by fraud may be vacated and set aside as any other decree thus obtained. Continuing, the court said: “We think, therefore, that when such a wrong has been consummated in the obtaining of decrees of divorce, the courts have the right and owe the duty to set them aside and declare them null and void, and that so far as the case of McQuigg v. McQuigg, supra, and the cases following-it conflict with the conclusion reached, they should be overruled. Very .much good, we think, -will come from the adoption of the rule in divorce cases, and no harm, provided the injured party is not negligent in moving upon the discovery of the fraud. Possibly, in some cases, a second'husband or wife may innocently be made to suffer, but, with proper restriction,- this is not more likely than in the reversal of decrees on appeal to this court. “It is proper and right-in the administration of the law to protect .innocent third parties, who may marry a divorced man or woman, but it is quite as proper and important to protect the husband and wife and innocent children from fraudulent divorces. Some of the cases in this state, in which relief has been denied, are forcible illust-ratioiis of the necessity of the rule here adopted. The adoption of the rule is essential to the complete administration of justice, will tend to protect the courts and the family from fraud and wrong, and will serve as a warning to those inclined to practice such fraud.” The doctrine of this case has’ been followed in' the later case of Nicholson v. Nicholson, 113 Ind. 131, 15 N. E. 223. The case of O’Connell v. O’Connell, 10 Neb. 390, 6 N. W. 467, is also relied on. That the force of this case as an authority had been weakened by the subsequent decisions of that court, was insinuated but not discussed by .the court in Smithson v. Smithson, 37 Neb. 535, 56 N. W. 300, 40 Am. St. 504. It is unnecessary to review other cases cited by respondent and which only incidentally bear upon our discussion. The reason for the better rule is aptly stated in Brown v. Brown, 58 N. Y. 609, wherein the chapter of the code, allowing vacation of decrees and judgments and the power of the court thereunder was clearly defined. “Under that provision [in relation to opening judgments] the period of seven years must elapse before a judgment founded on publication can be reposed upon as final. It is obvious that such a provision is inappropriate to actions for divorce; they were therefore excepted from it. But the power which the courts had before the Code, over their own judgments and records, is not interfered with. It is not contended that section 135, or any other, takes away the power of the court to open a judgment of divorce entered upon default, where the summons has been personally served, and it would indeed be an anomaly to give so much greater effect to one entered upon publication that while the former could be opened by the exercise of the discretionary power of the court, the latter would be beyond the reach of any such power. We do not think that it was the intention of the act to produce any. such unreasonable result.” The rule that such a decree may be vacated is sustained by the following authorities: Edson v. Edson, 108 Mass. 590, 11 Am. Rep. 393; Adams v. Adams, 51 N. H. 388, 12 Am. Dec. 134; Body’s Appeal, 38 Pa. St. 241; Zoellner v. Zoellner, 46 Mich. 511, 9 N. W. 831; Helmes v. Helmes, 24 Misc. Rep. 125, 52 N. Y. Supp. 734; Hamilton v. Hamilton, 29 App. Div. 331, 51 N. Y. Supp. 365; Elmgren v. Elmgren, 25 R. I. 177; Medina v. Medina, 22 Colo. 146, 43 Pac. 1001; Van Derveer v. Van Derveer, 30 W. Law B. 96, 11 Ohio Dec. (reprint) 828; Womack v. Womack, 73 Ark. 281, 83 S. W. 937, 1136; Bishop, Marriage & Divorce, 1556; Stewart, Marriage & Divorce, 422; and, in the opinion of the writer, by the case of Winstone v. Winstone, 40 Wash. 272, 82 Pac. 268, as well as the Metler and McDonald cases. It is contended, however, that, the lower court having had complete jurisdiction, a mere offer, to prove that the decree was obtained as the result of perjured testimony and was fraudulently obtained is insufficient. Whatever the rule may be when the divorce proceeding is collaterally inquired into, it must be remembered that this is a direct application, timely, and diligently prosecuted, and no harm can result to any innocent person by a further inquiry as to the justice of respondent’s cause. Aside from these considerations, the interest of the public in all actions for divorce is such that a policy has grown up in accord with enlightened sentiment to discourage and deny divorces unless claimed upon proper grounds and sustained by an honest disclosure of the facts. There is much in the record that prompts further inquiry. The complaint did not, as the statute (Bal. Code, § 5730; P. C. § 4641), expressly provides, distinctly state the causes relied upon. Although the proceeding must haye borne the earmarks of a divorce by consent or collusion, the prosecuting attorney was not called upon to inquire into the merits of the cause. It was in effect, notwithstanding the record, a decree by default. The fact that respondent, as it now appears, had prompted-the whole proceeding, including the employment of an attorney who was willing to accept the questionable agency of appearing for the defendant, through the intervention of the plaintiff whose interest was hostile, was in itself, when promptly disavowed, a showing of fraud upon the law and upon the court calling for further inquiry. The demurrer admits the conduct of respondent prior to and subsequent to the entry of the decree; and while ordinarily the plea of coercion or duress would not be heard upon the facts, alleged, when we consider the years of intimate relationship existing between these parties, the trust and confidence inspired by mutual interest in the rearing of children, it is not for us to say in this proceeding that appellant was not the victim of a well-founded dread that respondent, the father of her children, would take his life unless she submitted to his demand. His after-declaration that he intended to marry another was enough to disabuse her mind, make the cowardice of his silly threat stand naked and revealed, and recall the fact that her right had been taken from her without a hearing. It is not, as counsel says, an indication that she has allowed her “jealous and spiteful disposition to overcome her better judgment.” In it we see the way of woman, and when it appears that she has been deprived of her right by a pretense that prevented a full inquiry, the interest of the public as well as that of the wife intervenes and demands a rehearing upon the full merits of the cause. “Where the unsuccessful party has been prevented from exhibiting fully his case, by fraud or deception practiced on him by his opponent, as by keeping him away from court, a false promise of compromise; . . . these, and similar cases which show that there has never been a real contest in the trial or hearing of the case, are reasons for which a new suit may be sustained to set aside and annul the former judgment or decree, and open the case for a new and fair hearing.” United States v. Throckmorton, 98 U. S. 61, 25 L. Ed. 93. The order of the lower court sustaining the demurrer to appellant’s petition and dismissing her from the court is reversed, and the cause remanded with instructions to the lower court to entertain her petition for the vacation of the decree. Rudkin, C. J., Fullerton, Gose, and Morris, JJ., concur.

The opinion of the court was delivered by Fullerton, J. The appellant, who was plaintiff below, instituted this action .to recover tbe price of certain labor and material alleged to have been furnished tbe respondent in tbe construction of an irrigating ditch or canal by one Peter Costello under a written contract entered into between Costello and tbe respondent. Tbe trial court sustained a general demurrer to tbe complaint, and,' upon tbe appellant’s refusal to plead further, entered a judgment for costs in favor of tbe respondent. Tbe ultimate question before us is, therefore, does the complaint state a cause of action ? The complaint alleges tbe due organization of tbe respondent as an irrigation district under and by virtue of tbe act of tbe legislature of tbe state of Washington approved March 20, 1890 (Session Laws 1889-90, p. 671), and tbe acts supplemental thereto; that after its organization tbe district voted for and sold bonds for tbe purpose of raising money to construct irrigating canals and works, and thereupon entered into a contract with one Peter Costello to construct for it an irrigating canal or ditch of about thirty miles in length, according to certain plans and specifications theretofore adopted by the district. The contract is set out in the complaint, and contains, among others not material to be considered here, the following provisions: “This contract, made and entered into this 23d day of July, A. D. 18 94, by and between the Middle Kittitas Irrigation District, of Kittitas county, Washington, a public corporation organized and existing under and by virtue of the laws of the state of Washington, party of the first part, and Peter Costello, party of the second part, “Witnesseth: That, whereas the said Middle Kittitas Irrigation District, by virtue of the authority vested in the board of directors of said district by laws of the state of Washington, hereby agrees to let unto the said Peter Costello, contractor, the entire work of constructing and completing a certain canal or ditch for said Middle Kittitas Irrigation District, to be known as the Middle Kittitas Irrigation Canal or Ditch, according to the specifications hereto attached and made a part of this contract, and the plans, profiles, and drawings on file in the office of the secretary of said district: “How, therefore, in consideration of the payments and covenants hereinafter mentioned, to be made and performed by the said party of the first part, the said Peter Costello hereby covenants and agrees to furnish all the material, labor, and appliances, and do all the work above mentioned in a substantial and workmanlike manner in strict accordance with the aforesaid specifications, plans, profiles, and drawings, and in strict obedience to any and all directions which may from time to time be given by the engineer in charge of said work, and to the satisfaction and acceptance of said engineer, and to the approval of the board of directors of said irrigation district. . . . “The work embraced in this contract shall be begun within ten days after notice so to do shall be given by the engineer to the said contractor, and shall be carried on regularly and uninterruptedly thereafter with such force of employees as may be necessary to secure its full and entire completion on or before the first day of May, A. D. 1895..... “In consideration of the construction and completion by the said party of the second part of all the work embraced in this contract in strict accordance with the aforesaid specifications, plans, profiles, and drawings, and the covenants and agreements herein contained, to the satisfaction and acceptance of the engineer in charge of the work, and the approval of the board of directors of the Middle Kittitas Irrigation District, the Middle Kittitas Irrigation District, party of the first part, hereby agrees to pay to Peter Costello, the party of the second part, the following prices, to-wit: Solid Rock at $1.00 per cubic yard. Loose rock at $0.32 per cubic yard. Earth excavation at 10 4-10 cents per cubic yard. Timber, tongue and grooved, at $11.40 per M., B. M. Rough lumber at $16.40 per M., B. M. Tunnel excavation, earth, at $1.54 per cubic yard. Tunnel excavation, loose rock, at $3.14 per cubic yard. Tunnel excavation, solid rock, at $6.00 per cubic yard. Timber lining for tunnel at $18.40 per M., B. M. Clearing 75 acres, more or less, at $22.00 per acre. Grubbing 20 acres, more or less, at $80.00 per acre. Cast iron at $0.06 per pound. Steel at $0.06 per pound. Concrete at $9.00 per yard. “The payments for the above work to be made in monthly installments, not to exceed ninety (90) per cent, of each estimate returned hy the engineer; provided, that if said contractor completes said work and estimates on the same are returned sooner than the funds from the sale of bonds reaches the treasurer of said district, then whatever estimate would have otherwise been payable upon the return thereof by the engineer shall not be payable until the funds arising from the sale of bonds are in the hands of said treasurer to meet the same. “And the said Peter Costello hereby covenants and agrees to construct and complete the entire work men tioned in this contract on or before the first day of May, A. D. 1895, and it is hereby expressly understood and agreed by and between the parties hereto that the specifications hereto attached are a part of this contract.” It is next alleged that, after entering into the contract, Costello prosecuted his work upon the canal until about the 4th day of November; 1894; that such work was performed in accordance with the plans and specifications, and in strict obedience to all directions which were given him by the engineer in charge of the work for the respondent; that the engineer in charge furnished the board of directors of the district with two estimates, the one of date September 18, 1894, which was for the amount of $19,-164.16, and the other of date November 20, 1894, for the amount of $42,849.02; that the board of directors approved the first estimate, but failed, neglected, and refused to examine, approve, or take any action on the second; “that the total amount that was due to said Costello, under said contract, and the reasonable value of the work done by him as aforesaid, was the sum of $62,013.18; that said district paid to said Costello, upon the amount so due the sum of $18,300, leaving a balance due under said contract of $43,713.18;” that the respondent had no other available resources from which to pay for the work called for by the contract, except by the sale of its bonds, and that on or about the 1st of November, ,1894, while Costello was in the full and active performance of his contract, it became known to him that the respondent had not collected any money from the sale of the bonds since the payment of the estimate of September 9, 1894, and that it had no money wherewith to pay for the work then done, and for which payment was then due; that the purchasers of the bonds were unable to consummate the sale, and were in default several installments of the purchase price; that the respondent had taken no steps to compel payment of the amounts due on the bonds, or to rescind the sale, or to make other dispositions of the bonds for raising money; that he could get no assurances from the respondent that money wherewith to pay for the work done upon the estimate then due would be raised within a reasonable time, or at all; that it was apparent that no money would be collected on account of the sale of the bonds, and that the conduct of the respondent made it to appear to be very uncertain whether it would be able to carry out its part of the contract, and that because of these things he deemed it necessary to suspend work until the respondent should raise the money, or take such action as would probably raise the money within a reasonable time. Then follow the following allegations: “That the said Costello was unable to procure at that time a meeting of the board of directors of defendant, but did consult with the secretary of said board, and, with said secretary, drove some miles to the residence of the president of said board, and consulted with the said president as to what was most advisable for him (the said Costello) to do. That the said president stated to the said Costello that defendant had no money wherewith to make payment to the said Costello, and no prospect of getting any money for such payment, and that the said Costello should suspend work under said contract until such time as defendant could arrange to raise money wherewith to carry on said contract. “That thereupon said Costello did stop work under said contract, under the conditions and for the purpose aforesaid, and that thereafter, to-wit, on or about the 6th day of bTovember, 1894, a meeting of the board of directors of defendant was held at which the said Costello and president were present, and stated to said board the action taken by said president, and that said Costello had stopped work, as aforesaid, until defendant could arrange for raising funds within a reasonable time for making payment for the work then done under said contract, whereupon lie would continué said work; and the said board stated to said Costello that defendant bad no money with which to pay for the work then done under said contract, and no prospect of getting any money for such purpose, and consented to, acquiesced in, and approved of the stopping of work by the said Costello, and the action of the said president in relation thereto. ■ “That for many months after stopping said work, the said Costello made many and persistent efforts to induce the defendant to take some action looking to the raising of money by the sale of said bonds for the purpose of carrying on said contract, and earnestly endeavored to secure from defendant some statement as to what defendant would do, or try to do, looking to the payment for the work already done and the completion of said contract, but defendant at all times would not and did not give the said Costello any definite statement, intimation, or information as to what defendant would do in and about the premises, or as to whether it would do anything. That said Costello had great. difficulty in getting said board to meet for the purpose of considering the matter of defendant’s indebtedness to him, or the raising of funds by the sale of said bonds, and that said board showed a strong disposition and intention not to discuss said matters with said Costello, and to do nothing in regard thereto, and to do nothing toward performing defendant’s part of said contract, or any portion thereof.” It is then alleged that the respondent delivered only $20,000 face value, of the bonds sold, leaving with it unsold bonds of the face value of $180,000; that it never at any time took any steps for the enforcement of the contract of sale, but rescinded the contract on January 12, 1895; that it wholly failed and neglected and refuses to offer the remainder for sale, or take any steps looking thereto, and that it has done nothing since the payment of the estimate of September 18, 1894, looking to the raising of funds for the carrying on of the contract, or any part thereof; that no part of the balance due for the work performed has been paid, and on March 23, 1897, for a valuable consideration, Oostello sold and assigned his claim to the appellant. The demand is for judgment for the sum of $13,713.18, and legal interest from November 20, 1891. The record does not disclose the reasons which induced the learned trial judge to hold that no cause of action was stated in the complaint, hut we gather from the arguments of counsel it was not because» of the omission of an essential allegation which could have been supplied by amendment, but was because the facts pleaded conclusively show that no cause of action had accrued, or could possibly accrue, to Oostello by the terms of the contract. In support of this contention it is first urged that the contract is an entirety, and consequently must be performed as a whole before an action will lie for the contract price, or any installment thereof. Whether the contract is entire or separable may not he necessary here to determine, but, if it were so necessary, we think it could Avell be doubted Avhether it is entire in the sense contended for. There is no fixed price for the whole work, nor are the installments agreed to be paid by the terms of contract arbitrarily fixed, without regard to the amount and value of the work done at the .time they are made payable. The party performing the work is to he paid at so much per cubic yard for stone removed, at so much per thousand feet for lumber furnished, at so much per acre for grubbing and clearing, and at so much per pound for iron and steel furnished; and the amount of the monthly installments are measured by these considerations, and are as capable of definite ascertainment at the end of the month as they would be at the time of the completion of the work. Contracts of this character are not usually regarded as wholly entire or wholly separable, hut belong to that intermediate class where partial performance entitles to partial recovery, subject to offset for damages suffered because of the failure to complete the contract as a whole, even when the party undertaking to perform the work ceases of his own volition and without lawful excuse before its completion. But, if we were to regard this contract as entire, we think the facts alleged in the complaint show a sufficient excuse for its non-performance on the part of Oostello. Subject to the qualification contained in the proviso with regard to the time funds reached its treasurer, it is clear that the respondent was by the terms of the contract as much obligated to make monthly payments, up to ninety per cent, of the work performed during the preceding month, as Oostello was obligated to perform the work. These promises were mutual and dependent, in the sense that nothing could be claimed until a month’s work had been performed; but after that time they became independent, and the failure to make the payment on the part of the respondent operated to release Costello from further obligation to go on with the work; and rendered it liable to him for the work performed, at the contract price. This principle seems to be generally •affirmed by the authorities. In Phillips, etc., Construction Co. v. Seymour, 91 U. S. 646, the plaintiffs entered into a contract with the defendant by which they undertook to construct a part of the Wisconsin Central railroad which the defendant had contracted to build. The contract provided, among other things, that payments should be made by the defendant, as the work progressed, on estimates made monthly by the engineer of the railroad company on the 15th of each month, for all work done on the previous month, except fifteen per cent., retained by defendant as security for performance on the part of the plaintiffs until the work was completed. The plaintiffs brought their action of covenant on the contract, alleging that they had commenced the work in July, shortly after the contracts were signed, and had prosecuted it vigorously until some time in December; that the defendant had failed to pay the estimate for work done in October and November, and, seeing no prospect of payment, the plaintiffs were compelled to abandon the work. They asserted a claim for all the work done as estimated, and for various items of damage suffered by them in consequence of the failure of the defendant to make the payments as agreed. They recovered in the court below, and this judgment was affirmed by the supreme court; the court holding that the plaintiffs were not required, after the defendant had defaulted on a payment due, to proceed with the work, at the hazard of further loss, and that they were entitled to recover the contract price of the work done, together with the fifteen per cent, on the estimate retained by the defendant as security for the performance of the contract. In Dobbins v. Higgins, 78 Ill. 440, speaking of- the rights of the parties to a similar contract, the court said: “That there was a breach of contract on the part of appellants, cannot be contested. By their contract, they were bound to pay on estimates at the end of each month. Having failed to make payment for the work performed in October on the contract, appellees had the unquestioned right to abandon the contract and to sue for and recover compensation for damages. The correct measure of damages was adopted by the instructions given for appellees. They informed the jury that they had a right to recover for the work done and not paid for, fro tanto, at the contract price. This has been repeatedly held by this court to be the true rule .in this character of cases.” In Lord v. Belknap, 1 Cush. 279, it was said: “Whether mutual stipulations are dependent and conditional, or independent, is sometimes a difficult question. But, where time is given for performance on one side, and payments are to be made on the other within such time it is certain that the making of payments cannot depend upon a full and complete performance.” And in that case it was held that, under a contract to construct and complete a portion of a railway in consideration of certain monthly payments, and the balance of the contract price when the work should be completed, the party undertaking the performance of the work could recover the monthly payments earned, although he had failed to complete the entire work. To the same effect is the case of Perkins v. Locke (Tex. Civ. App.), 27 S. W. 783. The syllabus of that case, which correctly states the point decided, is as follows: “A contract for the building of a railroad provided for payment in first mortgage bonds, to be issued pro rata on the certificate of the chief engineer when each five miles was ready for rolling stock. The contract was to be forfeited ‘if said road, or any portion thereof, shall not be fully completed.’ Held, that the contract was not an entirety, but that the bonds should have been issued on the engineer’s certificate when each five miles were ready for rolling stock, and the right to them under the contract was not affected by the failure to complete the road.” See also Crawford v. McKinney, 165 Pa. St., 609 (30 Atl. 1047); Grand Rapids & Bay City R. R. Co. v. Van Deusen, 29 Mich. 443; 2 Sutherland, Damages, (2d ed.) § 708; Lake Shore & M. S. Ry. Co. v. Richards, 152 Ill. 59 (38 N. E. 773, 30 L. R. A. 33.) But it is said, — and this is, perhaps, the principal reliance of the respondent, — that it is especially provided in the contract “that if said contractor completes said work and estimates on the same are returned, sooner than funds from the sale of bonds reaches the treasurer of the district, then whatever estimates would have otherwise been payable upon the return thereof by the engineer shall not be payable until funds arising from the sale of the bonds are in the hands of said treasurer to meet the same,” and that the complaint shows upon its face that no funds have been received from the sale of the bonds since the first sale of $20,000, which sum has been paid the contractor. It is argued that the lauguage of the contract in this respect is plain and unambiguous, contains no doubtful phrases, or scientific or commercial terms which might be the subject of explanation, and hence there is no room for construction, and the contractor could neither abandon the contract, nor recover for any defaulted installment of the contract price, until he shows that the money from the sale of bonds actually reached the treasurer, and the respondent had then refused to make the agreed payments. To this there are two sufficient answers: The first is that the contract, when construed in the light of surrounding circumstances will not bear the construction the respondent would put upon it. It is a familiar rule that contracts will be given that construction which will best effectuate the intention of the parties, and that this intention must be collected, not from detached portions of the contract but from the contract as a whole. The court will, also, in determining the intention of the parties, look to the circumstances under which the contract was made, the subject-matter and the objects and purposes for which it was made. Applying these principles here, it cannot be supposed that the parties to the contract intended, by the proviso in question, to agree that the payment for this vast work should depend upon the contingency of the district being able to dispose of its bonds at the price limited by the statute under which it was organized. It is shown by the complaint that the canal was to be some thirty miles in length. It was said in the argument that its estimated cost exceeded $150,000. Certainly no prudent man would agree to a contract calling for the expenditure of this vast sum of money on the condition that it should or should not be returned to him as the contingency mentioned might or might not happen. The natural and obvious conclusion to be drawn from a reading of the contract is that the parties intended by the contract that the party doing the work should be paid for the work done in monthly installments, and, in any event, that, if the money to meet these payments was not on hand at the time the estimates were returned, a reasonable delay should not be deemed a breach of the contract on the part of the district; but more than this, it is evident, no one intended to claim. It was not intended or expected by either party that the contractor should complete the work, whether these installments were paid or not; nor was it intended that he should be paid only in the event the bonds were sold. Whether the contractor was warranted in ceasing work at the time he did cease, in the lights he then had, is not a material question now. Subsequent events have shown that he was. Had the district acquired funds to meet the payments due within a reasonable time after the work ceased, it might be a question whether he had not forfeited his contract, but the district cannot be heard to urge the matter at this time. It is not only shown that it did not acquire funds within a reasonable time, but it is shown that none had been received up to the time of the commencement of this action. The second answer is the parties mutually agreed that the work should be suspended. To this it is objected that the board of directors of the district was without power to consent to a cessation of work, and, if it had power and did so consent, there was no consideration for the agreement, and hence it is not obligatory. In support of the first proposition it is argued that an irrigation district is a quasi-municipal corporation, that the powers of its board of directors are limited to such as the statute clearly defines, and that no power is given the board to agree that a contract once lawfully entered into may be rescinded •or annulled. The section of the statute defining the powers of the board of directors contains the following: “The board shall have power, and it shall be their duty to manage and conduct the business and affairs of the district, make and execute all necessary contracts, employ and appoint such agents, officers and employees as may be required, and prescribe their duties, establish equitable bylaws, rules and regulations for the distribution and use of water among the owners of said lands, and generally to perform all such acts as shall be necessary to fully carry out the purposes of this act.” Bal. Code, § 4176 (Session Laws 1890, p. 677, § 11). It is true that in this country all corporations, whether public or private, derive their powers from legislative grant, and can do no act for which authority is not expressly given, or may be reasonably inferred from the powers granted. But this rule must not be given a too narrow application, else, corporations may be denied in some cases the power of self-preservation, as well as many of the means necessary to effect the objects for which they were incorporated. Suppose, in this case, the district had made an improvident contract — had, for example, entered into an agreement to construct a canal which should he found after the work started, .because of difficulties unforeseen, insufficient to carry water; could it be successfully contended that no power existed in the district to change or modify the mode of construction or abandon it altogether ? It would seem that this power would exist, from the mere grant of power to construct a canal. But the statute here is broad. Power is given the board of directors to “make and execute all necessary contracts . . . . and generally to perform all such acts as shall be necessary to fully carry out the purposes of its charter.” This power is amply sufficient to authorize the board of directors to annul a contract lawfully entered into, and of the necessity and sufficiency of the cause for such an act it is the sole judge. As to the second objection, it is sufficient to say the agreement required no new or independent consideration to support it. Tingley v. Fairhaven Land Co., 9 Wash. 34, 39 (36 Pac. 1098); Long v. Pierce County, 22 Wash. 330, 348 (61 Pac. 142); Hathaway v. Lynn, 75 Wis. 186 (43 N. W. 956, 6 L. R. A. 551); Ruege v. Gates, 71 Wis. 634 (38 R. W. 181); Izard v. Kimmel, 26 Neb. 51 (41 N. W. 1068). It is further urged that the complaint shows that the estimates returned by the engineer, which gave rise to the claim sued upon, were never approved by the board of directors of the district, and that this is necessary, under the terms of the contract, before any obligation arises to pay for the work. On this point enough is alleged in the complaint to show that the refusal of the board to act was purely arbitrary. Ro reason for the refusal existed, if the allegations of the complaint be true, and they must be taken as true for the purposes of this demurrer. It is needless to add that the district cannot escape liability in this way. The other reasons suggested for sustaining the judgment of the trial court require no separate consideration. On the whole, we think the complaint states a cause of action. Many of its essential allegations are, of course, travers able, and it may be that there are reasons why the appellant should not be permitted to recover; but such, if "any there are, must be taken by answer. The judgment appealed from is reversed, and the cause remanded with permission to the respondent to answer over. Peavis, C. J., and Dunbar and Anders, JJ., concur.

Parker, J. The plaintiff, Blenz, commenced this action in the superior court for Stevens county, seeking recovery of a judgment against the defendant, Fogle, for an alleged balance of $5,450 and interest, due upon a $6,000 promissory note, executed and delivered by Fogle to him, and also seeking foreclosure of two chattel mortgages purporting to secure the same, executed and delivered by Fogle to him upon farm implements, live stock, and crops situated in that county. The principal defense made in behalf of Fogle is that the consideration for the note in question has failed, in so far as the note remains unpaid, because it was executed to evidence a part of the unpaid purchase price of an executory contract for the sale of land, which contract, Blenz asserts, has been terminated and the rights of Fogle thereunder forfeited. A trial in the superior court resulted in a judgment denying to Blenz the relief prayed for, and a dismissal of the action accordingly, from which he has appealed to this court. We shall refer to the parties to this cause and the contracts, note and mortgages in question as Blenz and Fogle, omitting reference to their wives for convenience of expression, though their wives, at least so far as their respective community obligations and interests are concerned, are parties to this action and will be, to that extent, equally affected by its final disposition. A contract looking tó the consummation of a sale of several hundred acres of land, and certain personal property situated thereon, by Blenz to Fogle, was entered into between them as follows: “This Coittract, made and entered into this 27th day of July, 1920, by and between August Blenz and Cora Blenz, husband and wife, of Colville, Stevens county, Washington, the parties of the first part, and Frank Fogle of Forman, N. Dak., the party of the second part, Witnesseth, as follows, to wit: “The parties of the first part, for their heirs, executors and administrators, agree to sell to the party of the second part all those certain pieces or parcels of land situate in the county of Stevens, state of Washington, known and described, as follows, to wit: [Here follows description of the land.] “The party of the second part, for his heirs, executors, administrators and assigns, agrees to buy of the parties of the first part said above described premises, and to pay the parties of the first part for the same the sum of thirty seven thousand ($37,000) dollars at the times and in the manner following, to wit: “One thousand ($1,000) dollars npon the execution of this contract, and the remainder of thirty six thousand ($36,000) dollars to he paid in two payments, as follows, to wit: “Nine thousand ($9,000) dollars on or before October 1st, 1920, and twenty seven thousand ($27,000) dollars on or before October 1st, 1925, with interest on said $27,000 from and after October 1st, 1920, at the rate of 6% per annum until due, and thereafter on the whole sum remaining due or unpaid in each year interest at 12% per annum until paid; interest all payable annually. “And the. party of the second part shall also pay and discharge all taxes and assessments imposed on said premises from and after the date hereof, whether ordinary, extraordinary, or for revenue purposes, when the same shall become due and payable, including all taxes for the year 1920 and all taxes thereafter. “It is hereby agreed by and between the parties hereto that this contract together with warranty deed made and executed by said first parties conveying said premises to second party and with bill of sale to machinery, implements, stock and crops on said premises and belonging to said first parties, conveying same to second party shall be placed in escrow with The Bank of Colville, Wash., to be delivered by said bank to said second party upon the payment of the $9,000 to become due on or before Oct. 1, 1920, and upon the execution and delivery by said second party of note and mortgage in the sum of $27,000 secured upon above described premises made in favor of said first parties. Abstracts showing good merchantable title to be furnished by first parties. “And it is hereby especially agreed by and between the parties hereto that second party shall have possession of said premises, stock, crops, machinery, implements, etc., upon the payment of the $9,000 to become due on or before Oct. 1st, 1920. First parties to remain on said premises until such time and to be paid by second party for the harvesting of said crops, caring for and looking after said land, crops, stock, etc. Settlement for same to be made at the time of taking possession by second party. “It is expressly agreed that time is the essence of this contract, and in case of default by the party of the second part, his heirs or assigns in any of the conditions above stipulated to be performed by him, then and in that case this contract shall become void and the party of the second part shall have forfeited all his rights hereunder and any and all payments that shall have been made shall become forfeited to the parties of the first part, which said payments it is hereby especially agreed in that event shall be deemed as damages hereby liquidated for the nonperformance of this contract by said second party.” "We note that this contract does not, in terms, convey any personal property, nor does the record before us affirmatively show any conveyance of any personal property, though it seems to be assumed that conveyance of personal property was eventually made as contemplated by the terms of the contract. "We also note that $37,000 is the stated total consideration for the sale of the land. "What the consideration was for the personal property contemplated to be transferred at the same time is a matter not made certain. However, we think, as we proceed, that will appear to be of no moment in our present inquiry. The thousand dollar cash payment specified in the contract, we assume, as counsel do, was paid upon the execution of the contract. Thereafter the contract was modified by the parties extending the due dates of the payments of the purchase price as follows: “This Agreement, Made and entered into this 5th day of August, 1920, by and between August Blenz and Cora Blenz of Colville, Wash., parties of the first part, and Frank Fogle of Forman, N. Dak., party of the second part, Witnesseth as follows, to wit: “That the payments to become due under that certain Land Contract of date of July 27,1920, made and executed by and between the parties hereto, are hereby extended to and made to become due on or before Nov. 1st, as follows, to wit: “The $1000 to be paid upon execution of said land contract; $9000 on or before November 1st, 1920, and $27,000 on or before November 1st, 1925, with interest thereon at the rate of 6% per annum from and after Nov. 1st, 1920. Interest all payable annually. “Second party to have possession of premises, crops, stock and implements upon the payment of the $9000 to become due on or before Nov. 1st, 1920, instead of October 1st, 1920, as stated in said land contract. “All other conditions of said land contract, excepting as mentioned in this agreement to remain the same as set forth in said contract. “It is hereby especially agreed by and between the parties to said contract-and to this further agreement that this agreement shall be attached to and become a part of said land contract.” This, we note, continues in full force all portions of the original contract not specifically so modified, meaning, of course, that its forfeiture provisions are continued in full force and effect. On November 1, 1920, Fogle, at the request of Blenz, executed and delivered to a third person a promissory note for $1,000. Fogle also then executed and delivered to Blenz two promissory notes for $1,000 each, and one for $6,000; all of these notes further evidencing the $9,000 due upon the contract on that day. At the same time, Blenz executed a deed conveying the land to Fogle and Fogle executed a promissory note payable to Blenz for $27,000, due November 1, 1925, and also a mortgage upon the land securing the same. This deed, the $27,000 note and the mortgage were then deposited in escrow with the Bank of Colville as contemplated by the contract, such escrow being evidenced by an agreement executed by Blenz and Fogle reading as follows: “November 1st, 1920. Bank of Colville, Colville, Wash. “The -within enclosed deed made and executed by-August Blenz and Cora Blenz, conveying certain properties described therein to Frank Fogle, and also the -within enclosed Mortgage in the sum of $27,000 made and executed by Frank Fogle and Annie Fogle in favor of August Blenz, said deed and mortgage to be placed in escrow with said Bank to be held and delivered to the Grantees named therein on the following conditions : “Said Deed to be delivered to Frank Fogle as soon as the mortgage in the sum of $1700 now on and against said land shall have been paid and properly released. “It being understood that the said Frank and Annie Fogle have on this date made and executed one certain chattel mortgage in the sum of $6000 and it being agreed and understood that the first money paid on said Chattel Mortgage shall apply on the payment of said $1700 mortgage now against said lands. “Said $27,000 mortgage to be delivered to August Blenz at the time of delivery of said Deed to Frank Fogle.” We are not advised by the record that any papers, other than this deed, the $27,000 note, and the mortgage securing the same', were ever placed in escrow by the parties, though the record does suggest that the parties originally contemplated other papers being placed in escrow. So we shall assume as we proceed that no other papers having to do with the sale of the land or personal property were ever placed in escrow. On the same day, Fogle, to secure the $6,000 note, executed and delivered to Blenz a chattel mortgage upon personal property, some of which seems to have been personal property transferred by Blenz to Fogle at the time of contracting for the sale of the land, and some of which seems to have been other property then belonging to Fogle. Blenz apparently soon thereafter surrendered possession of the land to Fogle and wife, and, we assume, also surrendered whatever personal property was contemplated by the contract should he then transferred by Blenz to Fogle. On June 30, 1922, Fogle executed and delivered to Blenz, as additional security for the $6,000 note, a chattel mortgage upon the crops growing upon the land during the season of 1922. On May 22, 1922, Blenz, evidently deeming Fogle’s rights under the original contract as being subject to forfeiture, because of his failure to make payments as therein provided — that is, his failure to pay taxes upon the land and failure to pay the installments evidenced by the three $1,000 and one $6,000 notes — elected to declare Fogle’s rights under the contract forfeited, and took up from the bank the papers which had been deposited in escrow. This is evidenced by an indorsement signed by Blenz upon the escrow agreement in the form of a receipt to the bank for the papers, in these words: ‘ ‘ Received above papers. Contract having been forfeited.” We note that this occurred before the execution of the second chattel mortgage further securing the $6,000 note, but we think the record warrants the conclusion that, when Fogle executed that mortgage, he was not advised of Blenz’s claim of forfeiture and taking up the escrow papers from the bank. On July 22, 1922, this action was commenced by Blenz seeking recovery upon the $6,000 note and the foreclosure of the' two mortgages. This, it will be noticed, occurred two months after Blenz had taken up from the bank the escrow papers and claimed forfeiture of Fogle’s rights under the contract. On July 29, 1922, seven days after the commencement of this action, Blenz commenced, in the superior court for Stevens county, another action against Fogle seeking a formal adjudication of the forfeiture of Fogle’s rights under the contract. In his complaint in that action, he alleged, among other things: “That defendants have violated the terms of said contract in that they failed to pay taxes and assessments on said property and have failed to make any payments whatever on said contract save and except the sum of $575 on the chattel mortgage and note mentioned in said contract.” Some effort is made hy oral testimony of Blenz to show that the giving of the $6,000 and other notes was understood hy the parties to he in full payment of the $9,000 then due upon the contract price, so that thereafter Blenz would have the right of recovery upon the notes wholly unimpaired by anything which might impair the debt viewed as a part of the original consideration for the land. This testimony we think, however, amounts to nothing more in substance than the opinion of Blenz that “I received those notes the same as cash,” he being unable to remember any definite conversation with Fogle evidencing an agreement between them that the notes were given and received in absolute payment of the $9,000 then due. Fogle testified that nothing was said upon that subject. Our real problem is this, is the obligation evidenced by the $6,000 note, in legal effect, still the same obligation as that amount of the agreed sale price of the original land contract? If it is, then we have here a ease where the vendor is claiming forfeiture of the rights of his vendee in the property and in payments made on the agreed sale price, and at the same time seeking to recover a portion of the sale price remaining unpaid. This, of course, a vendor cannot do. In other words, he cannot reclaim the property under a forfeiture clause in the sale contract, such as is here drawn in question, and at the same time recover any portion of the unpaid sale price. This view of the law is too elementary to call for extended citation of authorities to lend it support. 27 R. C. L. 666. It seems to be the settled law of this state, in harmony with the views expressed by other courts of this country, that the giving of a negotiable promissory note for a preexisting debt owing by the payor to the payee does not discharge the preexisting debt and create a new debt independent thereof, as between the original parties, in the absence of an agreement between them to that effect, and that the burden of showing such an agreement rests upon the one asserting it. Walsh v. Cooper, 10 Wash. 513, 39 Pac. 127; Moon Bros. Carriage Co. v. Devenish, 42 Wash. 415, 85 Pac. 17, 7 Ann. Cas. 649; Carlson Bros. Co. v. Weidauer & Lansdown Shingle Co., 69 Wash. 161, 124 Pac. 397; Globe Express Co. v. Taylor, 61 Colo. 430, 158 Pac. 717; Cranston v. West Coast Life Ins. Co., 63 Ore. 427, 128 Pac. 427; Way v. Mooers, 135 Minn. 339, 160 N. W. 1014; Leschen & Sons Rope Co. v. Mayflower Gold Min. & Reduction Co., 173 Fed. 855, 35 L. R. A. (N. S.) 1. In the last cited case, Judge Sanborn, speaking for the court, said: “A clear agreement by the creditor that he will take the risk of the payment of the note, and that the debt is discharged thereby, or the indubitable intention so to do, is requisite to extinguish a debt by the taking of the debtor’s note.” Even an unpaid judgment rendered upon an installment of the purchase price of such a contract, is held to be satisfied by an election of forfeiture by the vendor, because of subsequent defaults, in Warren v. Ward, 91 Minn. 254, 97 N. W. 886. Now, as we view this somewhat involved record, it seems plain to us that Blenz is asserting the right of forfeiture of Fogle’s rights under the land sale contract ; that Fogle acquiesces in such claim in so far as Ms rigM to the property is concerned; that Blenz asserted such right of forfeiture before he commenced this action seeking recovery on the $6,000 note; that the $6,000 note was given to further evidence that much of the $37,000 expressly specified in the land sale contract as the consideration for the contemplated consummation of the sale of the land from Blenz to Fogle; and that the facts of the case above summarized do not warrant the conclusion that the $6,000 note was given or accepted in complete satisfaction of that much of the specified purchase price; but that the note, as between these parties, was given only as additional evidence of that much of the consideration remaining unpaid at the time it was given. In other words, Blenz is, by this action, in effect but seeking recovery of that much of the unpaid purchase price of the original contract, after he has claimed forfeiture of Fogle’s rights thereunder, and Fogle’s acquiescence therein in so far as his right to the property under the contract of sale is concerned. We are of the opinion that the judgment of the trial court denying to Blenz recovery must be affirmed. It is so ordered. MaiN, C. J., FullertoN, and Tolman, JJ., concur.

Brachtenbach, J. Petitioners bring an original action, requesting a writ of mandamus, a declaratory judgment, and an injunction, based on the claimed unconstitutionality of certain provisions of Initiative 601 under the state constitution. The Respondents and Intervenors move to dismiss the action. We grant the motion to dismiss. On November 2, 1993, Initiative 601 was approved by the voters by a vote of 774,342 in favor and 737,735 opposed. Generally, Initiative 601 is a measure limiting expenditures, taxation, and fees. Section 8, limiting the amount fees may be increased, and section 13, providing for voter approval for certain tax measures, went into effect immediately. The rest of the provisions will not take effect until July 1, 1995. Beginning July 1, 1995, the state tax revenue limit will be replaced by a state expenditure limit. Under section 2 of the initiative, the limit for a fiscal year is to be calculated by increasing the previous year’s limit by a percentage equal to the fiscal growth factor, which is derived by averaging the sum of inflation and population change for a 3-year period. The State Treasurer is prohibited from issuing or redeeming a check, warrant, or voucher that will result in a general fund expenditure beyond the limit for the fiscal year. Under section 3 an emergency reserve fund is established, in which state revenues in excess of the expenditure limit are deposited. Moneys from the fund may be appropriated, within limits, only by approval of two-thirds of the members of each house of the Legislature. If the emergency reserve fund balance exceeds a certain amount, the balance, is transferred to an education construction fund. The Legislature may only appropriate moneys from that fund for school construction, unless the appropriation is approved by a two-thirds vote in each house and is approved by a vote of the people at the next general election. Under section 4, any action that raises state revenue or requires a revenue-neutral tax shift may be taken if approved by a two-thirds vote of each house and if the state expenditures will not exceed the expenditure limits. If the action results in expenditures in excess of the limit, then the action requires a two-thirds majority in each house and voter approval at the next general election. Where an emergency has been declared, the state expenditure limit may be exceeded if approved by two-thirds of each house and signed by the Governor. Under section 8, effective immediately, a fee may not increase in a fiscal year by a percentage in excess of the growth factor, unless there is prior legislative approval. Section 13, which continues in effect only until July 1, 1995, when the other provisions become effective, provides that voter approval is required to raise existing taxes, impose new taxes, or make revenue-neutral tax shifts. In December 1993, the Petitioners requested that the Attorney General file suit on their behalf and on behalf of the taxpayers of Washington, to challenge the constitutionality of Initiative 601. The Petitioners include: three public advocacy groups (one relating to children and two relating to senior citizens), two legislators, and six Washington citizens. The Attorney General refused to file suit. The Petitioners then filed a petition in this court. The Respondents, five state officials, answered the petition and moved to transfer the cause to Thurston County Superior Court. We denied the motion. Linda Smith and the Washington Taxpayer Protection Coalition, sponsors of the initiative, moved to intervene and the motion was granted. The Intervenors then moved to dismiss, which was followed by the Respondents’ motion to dismiss. We first set the hearing on the motion to dismiss in conjunction with oral argument on the substantive issues, but later ordered that the motion to dismiss be heard separately. We now grant the motion to dismiss. The Petitioners seek a writ prohibiting the Respondent state officials from implementing and enforcing Initiative 601, a declaratory judgment that Initiative 601 is unconstitutional, and a permanent injunction barring its operation. Petition for Writ of Mandamus and for Declaratory Judgment and Injunctive Relief (hereinafter Petition), at 2. The Petitioners assert that jurisdiction of this court is founded upon Const. art. 4, § 4; RAP 16.2(a); RCW 7.16.150 et seq. (governing mandamus proceedings); and RCW 7.24.010 et seq. (the Uniform Declaratory Judgments Act). Under the Washington State Constitution, the Supreme Court has original jurisdiction in "habeas corpus, and quo warranto and mandamus as to all state officers”. Const. art. 4, § 4. Petitioners assert they are seeking declaratory and injunctive relief as incidental to the writ of mandamus. Br. of Pet’rs, at 43. With the exception of sections 8 and 13, none of the provisions of the initiative are effective until July 1, 1995. Unless otherwise noted, the following discussion relates to the Petitioners’ claims regarding those sections of the initiative not yet effective, which are the primary focus of this action. We will address sections 8 and 13 separately. We note at the outset that mandamus is an extraordinary writ. Our original jurisdiction to issue a writ is both nonexclusive and discretionary. Department of Ecology v. State Fin. Comm., 116 Wn.2d 246, 804 P.2d 1241 (1991). When directing a writ to the Legislature or its officers, a coordinate, equal branch of government, the judiciary should be especially careful not to infringe on the historical and constitutional rights of that branch. In their Petition, the Petitioners request the court to issue a writ of mandamus directing the Respondents "to adhere to the requirements of the Washington State Constitution and to prohibit them from implementing and enforcing Initiative 601”. Petition, at 18. Writs are not directed at a general course of conduct. In State ex rel. Taylor v. Lawler, 2 Wn.2d 488, 490, 98 P.2d 658 (1940), we said: The jurisdiction given to this court by the state constitution in Art. IV, § 4, to issue writs of mandamus to state officers, does not authorize it to assume general control or direction of official acts. Instead, the remedy of mandamus contemplates the necessity of indicating the precise thing to be done. Clark Cy. Sheriff v. Department of Social & Health Servs., 95 Wn.2d 445, 450, 626 P.2d 6 (1981) (citing State ex rel. Hawes v. Brewer, 39 Wash. 65, 80 P. 1001 (1905)). In State ex rel. Pacific Am. Fisheries v. Darwin, 81 Wash. 1, 12, 142 P. 441 (1914) (citing State ex rel. Hawes v. Brewer, 39 Wash. 65, 67-69, 80 P. 1001 (1905)), we also stated: Mandamus will not lie to compel a general course of official conduct, as it is impossible for a court to oversee the performance of such duties. . . . . . . It is therefore necessary to point out the very thing to be done; and a command to act according to circumstances would be futile. It is hard to conceive of a more general mandate than to order a state officer to adhere to the constitution. We have consistently held that we will not issue such a writ. This does not mean that a writ cannot issue in regards to a continuing violation of a duty. Where there is a specific, existing duty which a state officer has violated and continues to violate, mandamus is an appropriate remedy to compel performance. See Clark Cy. Sheriff v. Department of Social & Health Servs., supra (cited by the Petitioners). In Clark Cy. Sheriff, the Department of Social and Health Services was required by statute to accept all convicted felons offered by the sheriff for transfer to a reception center. The Director of the adult corrections division maintained that he had discretionary power to delay acceptance. The Department of Social and Health Services repeatedly accepted less than half the persons offered for transfer, and took the position that it could continue to do so. This court upheld the superior court order granting a writ of mandamus to compel the Department of Social and Health Services to accept the felons. Although this writ was directed at future conduct, i.e., accepting the felons in the future, the Director had also failed to act on many previous occasions. Further, the order compelling the Director to perform his duty was quite specific. The court ordered the Director to receive at the reception center inmates of the Clark County Jail convicted of a felony and committed to a state penal institution by the Superior Court for Clark County. Clark Cy. Sheriff, at 450. Although the Petitioners would have us rely on this case for authority to issue a writ directed at general conduct here, there is a difference between a recurring situation where the same specific duty repeatedly arises, and a general course of official conduct. A writ directing four public officials to comply with the constitution would prescribe not merely future actions, as Petitioners argue, but an entire scope of official duties. We decline to issue a writ directing officers of the State to adhere to the constitution, as we presume that they already do so without our direction. Further, the courts will not issue a writ in anticipation of a supposed omission of a duty, or unless the duty exists at the time the writ is sought. The duties the Petitioners request this court to compel or prohibit are not yet being performed, nor are they capable of performance, until the effective dates of the provisions. In State ex rel. Hamilton v. Cohn, 1 Wn.2d 54, 58-59, 95 P.2d 38 (1939) we stated: The duty to be enforced by mandamus must be one which exists at the time when the application for the writ is made. The writ will not issue in anticipation of a supposed omission of duty, but it must appear that there has been an actual default in the performance of a clear legal duty then due at the hands of the party against whom relief is sought. Until the time fixed for the performance of the duty has passed, there can be no default of duty. The court in Cohn further stated that a writ will not be granted on the basis of the unconstitutionality of an act until the time the act is effective: The courts uniformly hold, on the question whether mandamus should issue where the relator’s right to the writ depends on holding an act of the legislature unconstitutional, that the constitutional question will not be decided before the time when the statute is to take effect has arrived and a proper case under the statute is presented. Cohn, at 63 (citing 38 C.J. Mandamus § 681, at 920 (1925)). On this basis, the court originally denied the Petition as premature. Cohn, at 61-62. Likewise, the writ petition here, insofar as it is based on still inoperative law, is also premature. The court in Cohn distinguished Acme Fin. Co. v. Huse, 192 Wash. 96, 194 Wash. 706, 73 P.2d 341, 77 P.2d 595, 114 A.L.R. 1345 (1937), in which the court rendered a declaratory judgment on a statute not yet effective on the grounds that Acme Fin. Co. involved a declaratory judgment, not a writ of mandamus, and that the action there was maintainable in view of the allegations of the complaint that plaintiff would be damaged by its enforcement in person or property, that the defendant public officer was charged to enforce such statute and about to or would do so, and that such enforcement would infringe the constitutional rights of plaintiff. Cohn, at 62. We acknowledge the further distinction that the statute in Acme Fin. Co. was only 1 month away from its effective date and, unlike here, no ambiguities existed as to its operation. We will not diverge from the rule in Cohn and compel or prohibit the performance of duties which do not now exist. Finally, mandamus may not be used to compel the performance of acts or duties which involve discretion on the part of a public official. Vangor v. Munro, 115 Wn.2d 536, 543, 798 P.2d 1151 (1990); State ex rel. Pacific Bridge Co. v. State Toll Bridge Auth., 8 Wn.2d 337, 342-43, 112 P.2d 135 (1941). We will not usurp the authority of the coordinate branches of government. The Petitioners claim that the Respondents, Speaker of the House and President of the Senate, have the duties to preside over the Legislature, certainly not an appropriate subject for mandamus, and to certify and sign bills passed. The signing of a bill is not a ministerial task, as it involves a decision regarding the number of votes required for a particular action and whether those votes have been properly cast. In fact, these presiding legislative officers will be required to determine whether Initiative 601 applies to a particular bill if some or all of Initiative 601 remains the law. We will not grant a writ relating to these tasks. See State ex rel. Davisson v. Bolte, 151 Mo. 362, 52 S.W. 262 (1899). The Treasurer has the duty to receive, keep, and disburse all the moneys of the state. The Petitioners make no argument that these are merely ministerial tasks. Again, if some of the provisions of the initiative remain in effect, the Treasurer will also need to determine which disbursements would be in violation of the expenditure limit. The Attorney General is charged with prosecuting violations of the law, a duty which is generally recognized as highly discretionary. We will not tell state officials how to make discretionary decisions in advance, but will refrain from acting until after a state officer has undertaken action under the initiative and there is a claim that the officer has abused his or her discretion. In addition to mandamus, the Petitioners seek relief in the form of a declaratory judgment pursuant to RCW 7.24.010-.020. This court’s original jurisdiction is governed by the constitution and, by the plain language of the constitution, does not include original jurisdiction in a declaratory judgment action. The Petitioners themselves do not make the claim that this court has original jurisdiction under the declaratory judgments act, but seek declaratory relief as incidental to the mandamus proceedings. The only grounds on which this court could render declaratory relief regarding a provision of the initiative is if such a declaration necessarily underlies a writ of mandate as to duties under that particular provision. We have already established the impropriety of mandamus in this case. Even if this court did have original jurisdiction to hear this case as a declaratory judgment action, review would still be improper in that the action is not justiciable at this time. For declaratory judgment purposes, a justiciable controversy is: (1) . . . an actual, present and existing dispute, or the mature seeds of one, as distinguished from a possible, dormant, hypothetical, speculative, or moot disagreement, (2) between parties having genuine and opposing interests, (3) which involves interests that must be direct and substantial, rather than potential, theoretical, abstract or academic, and (4) a judicial determination of which will be final and conclusive. Nollette v. Christianson, 115 Wn.2d 594, 599, 800 P.2d 359 (1990) (citing Diversified Indus. Dev. Corp. v. Ripley, 82 Wn.2d 811, 815, 514 P.2d 137 (1973)); Spokane v. Taxpayers of Spokane, 111 Wn.2d 91, 758 P.2d 480 (1988). Absent these elements, the court "steps into the prohibited area of advisory opinions.” Diversified Indus., at 815. Petitioners argue that the 4-part test is met here. It is not. In regard to an actual, as opposed to hypothetical, dispute, most of the provisions of Initiative 601 are not yet in effect. When a statute is not in effect, and when it may be amended by the very persons the Petitioners claim are being harmed, state legislators, we cannot do otherwise than find that this is only a speculative dispute. As far as direct and substantial harm, the primary harm identified by the Petitioners is that Initiative 601 affects budgetary decisions and long-term fiscal plans. See Ex. O (Declaration of Art Wang); Ex. N (Declaration of Marlin Appelwick); Ex. M (Declaration of Nita Rinehart). These declarations also discuss confusion or concern in the Legislature regarding the initiative, but do not identify how there has been actual, concrete harm to the Petitioners. Indeed, the declarations reveal the purely political nature of the Petitioners’ challenge at this time. The main contention of the Petitioners seems to be that the Legislature is having difficulty raising taxes, a political problem which was resolved by the voters when Initiative 601 was enacted to limit the ability of the government to raise taxes. Furthermore, the Petitioners point to no immediate harm to those Petitioners who are not state legislators. Although the Petitioners who are, for example, students or teachers, may have an interest in funding for state educational institutions, there is no discussion of how these Petitioners are being currently affected or denied some benefit by Initiative 601 which is rightfully theirs. At this time, there are still many ambiguities regarding the provisions of the initiative. In fact, the Petitioners themselves refer to the confusion regarding the implementation of the initiative. Reply Br. of Pet’rs, at 22; see also Ex. P (Declaration of Helen Sommers), at 2 (stating that "the Initiative’s gray areas have made long-term fiscal policy decisions virtually impossible.”). The text of the initiative itself is capable of differing interpretations, and it is yet unclear what is required under some of the provisions. For example, under section 4(1), providing for super majority approval for actions which raise state revenue or require revenue-neutral tax shifts, there is no definition of revenue-neutral shifts. It is uncertain whether debt service is included in the expenditure limitation, an issue which has the potential to impact the budget, but is still undetermined. Ex. O (Declaration of Art Wang), at 2. A major ambiguity is whether the two-thirds vote requirement of section 4(1) applies to general fund taxes only or also to taxes not deposited into the general fund. Ex. R (Memorandum from Narda Pierce, Solicitor General, to assistant attorneys general), at 12. These are but a few examples of the uncertainties in interpreting the initiative, many more of which are contained in the declarations submitted by the Petitioners, and the memorandum from the Solicitor General. Exs. R; O-P. We are not asked to resolve these ambiguities here, but note that they render it difficult to determine whether the initiative does, in fact, have present harmful effects. Aside from the ambiguities as to the nature of the requirements of the initiative, the potential harmful effects of the initiative may never come to pass. It is possible that acts which are deemed to fall within section 4(1) will pass by two-thirds of the votes and so this greater voting requirement will have no real effect. Perhaps the Legislature can comply with section 4(1), without taking action which will result in expenditures over the expenditure limit, such that no referral to the voters will occur under section 4(2)(a), providing for voter referral for actions under section 4(1) which result in expenditures in excess of the expenditure limit. The course of future events is, at this time, purely speculative and subject to a challenge when a specific dispute arises in regard to a particular bill. Until presented with an existing, fact-specific action, this court will not involve itself in what is an essentially political dispute. If this court were to speculate, as the Petitioners seem to be asking, and assume that the initiative will cause future harm to the various Petitioners, such as forcing a redefini tion of basic education, then this court might just as well go one step further and assume that the Legislature will choose to ameliorate these alleged harms by amending the initiative, which it can do now by a two-thirds vote and will be able to do by a simple majority after December 1995. This potential short life, 5 months, militates against an advisory opinion before the legislation even becomes effective. Therefore, contrary to the Petitioners’ assertions, this action does not meet the 4-part justiciability test. A decision at this time would be advisory only. Although courts in some states do render advisory opinions, we do not do so in this jurisdiction. Washington Beauty College, Inc. v. Huse, 195 Wash. 160, 164, 80 P.2d 403 (1938). The Petitioners argue that even if the 4-part justiciability test is not met, the court should follow the "well-established rule that this court will hear matters of great public importance without regard to justiciability.” Reply Br. of Pet’rs, at 20. However, the cases relied on by the Petitioners do not provide strong support for their contentions. The Petitioners rely primarily on a passage from State ex rel. Distilled Spirits Inst., Inc. v. Kinnear, 80 Wn.2d 175, 178, 492 P.2d 1012 (1972): Where the question is one of great public interest and has been brought to the court’s attention in the action where it is adequately briefed and argued, and where it appears that an opinion of the court would be beneficial to the public and to the other branches of the government, the court may exercise its discretion and render a declaratory judgment to resolve a question of constitutional interpretation. This statement, however, does not refer to review of issues not yet ripe, as timing was not an issue in Distilled Spirits. The tax on the sale of liquor challenged in Distilled Spirits was already implemented and the taxpayer petitioner had already paid the tax. The above quotation is in answer to the respondent’s argument that the court could not examine the legislative process involved in enacting the tax measure because of the "enrolled bill” doctrine. That doctrine holds that an enrolled bill on file, duly signed, and fair upon its face is conclusive evidence of the regularity of the enactment proceedings, in accordance with the constitution. The court decided to render a declaratory judgment despite the "enrolled bill” doctrine. Furthermore, the members of the Legislature, the Governor, and the Attorney General also desired an opinion on the constitutional issue presented in Distilled Spirits, as it affected a number of legislative acts already passed. This is in stark contrast to the current action, in which the Respondent state officials seek a dismissal. Distilled Spirits is easily distinguished from this case where the challenged measures are not yet in effect, where there is no present harm to taxpayers even alleged, much less a tax paid, and where the state officials involved in enforcing the law do not seek an opinion. In addition to Distilled Spirits, the Petitioners claim that our case law is replete with cases of major public import in which this court dispensed with the justiciability test. Reply Br. of Pet’rs, at 20-21. An examination of the numerous cases cited for this claim reveals that not only is this an overstatement, but that even if we do not always adhere to all four requirements of the justiciability test, this court will not render judgment on a hypothetical or speculative controversy, where concrete harm has not been alleged. The Petitioners cite both DiNino v. State ex rel. Gorton, 102 Wn.2d 327, 332, 684 P.2d 1297 (1984) and Diversified Indus. Dev. Corp. v. Ripley, 82 Wn.2d 811, 815, 514 P.2d 137 (1973). In each of these two cases, this court dismissed the actions as not ripe for review. In DiNino, the court refused to render a declaratory judgment as to the constitutionality of the Natural Death Act (RCW 70.122). A woman who was not pregnant and not terminally ill wanted a declaration of the validity of her directive to her physician regarding life-sustaining procedures, which differed from the model directive in the act as far as pregnancy and abortion provisions. Despite the obviously important constitutional rights involved, the court held that there was no justiciable controversy, as the case presented a "hypothetical, speculative controversy”. DiNino, at 332. The court went on to hold that without a factual controversy before it, "an advisory opinion would not be beneficial to the public or to other branches of government.” DiNino, at 332. The court in Seattle Sch. Dist. 1 v. State, 90 Wn.2d 476, 585 P.2d 71 (1978), cited by the Petitioners, did rely in part on the public interest involved in finding that there was a justiciable controversy. That case involved not an unripe claim, but the argument that as an arm of the State, the school district could not be an adverse party to the State. The controversy itself was not in any way speculative or hypothetical. The Petitioners also cite to Fritz v. Gorton, 83 Wn.2d 275, 517 P.2d 911, appeal dismissed, 417 U.S. 902, 41 L. Ed. 2d 208, 94 S. Ct. 2596 (1974), in which the appellants alleged, in part, that a provision of a particular initiative had a chilling effect on their First Amendment right to petition the government. In the First Amendment context, a "chilling effect” on First Amendment rights is a recognized present harm, not a future speculative harm, which allows third party standing when the law in question burdens constitutionally protected conduct. Tacoma v. Luvene, 118 Wn.2d 826, 827 P.2d 1374 (1992). The present case does not arise in the context of the First Amendment and we will not rely on the claimed "chilling effect” of the legislation on tax increases and expenditures to find present harm. The Petitioners referred to Seattle v. State, 103 Wn.2d 663, 694 P.2d 641 (1985) in their briefs and at oral argument. There this court granted standing to the City to challenge two statutes governing annexation procedures. We pronounced that the City had a "direct interest in the fairness and constitutionality of the process by which it annexes territory”, in response to the argument that the City did not have standing to bring an equal protection claim. Seattle, at 669. Although this court did state that the requirements for standing are applied more liberally in cases of public import, there was no argument that the controversy was not a present one or that the threatened harm had not yet occurred. The City had already attempted to annex territory, but the attempts were thwarted twice, each time under the newly enacted statutes the City was challenging in the case. The City had, in fact, been affected by the legislation. This claim cannot be made here. We fully acknowledge that this court has, on the rare occasion, rendered an advisory opinion as a matter of comity for other branches of the government or the judiciary. In Citizens Coun. Against Crime v. Bjork, 84 Wn.2d 891, 529 P.2d 1072 (1975), referred to by the Petitioners, involving the legislative power to override the Governor’s veto, this court held that it would render an advisory opinion "[i]n consideration of the comity existing between the judicial and executive branches of the state government”. Citizens Council, at 895. See also State ex rel. O'Connell v. Dubuque, 68 Wn.2d 553, 413 P.2d 972 (1966) (Legislature passed concurrent resolution seeking an adjudication). Here, not only is there no request by the Legislature itself that we adjudicate this case, but the Respondent state officials, of both the legislative and executive branches, seek dismissal of the case. Again, this court in Nostrand v. Little, 58 Wn.2d 111, 361 P.2d 551 (1961), appeal dismissed, 368 U.S. 436, 7 L. Ed. 2d 426, 82 S. Ct. 464 (1962) issued an opinion only because the United States Supreme Court directed that it do so. Nostrand involved the validity of an act requiring every public employee to subscribe to an oath that he or she was not a subversive or member of the Communist party, arguably a matter of public importance. The court noted that there was no allegation or finding that the professors challenging the oath had refused to take the oath or that they intended to refuse in the future. The court stated that without "such a showing it would seem premature, even in a declaratory judgment action, for a court to rule on a hypothetical situation.” Nostrand, at 119. The court went on to enter a contingent ruling, based on the hypothetical assumption that the plaintiffs were in a position to raise the issue when the case first came to the court. Nostrand, at 119. In the absence of a command from the Supreme Court, we will not enter a ruling based on the hypothetical harm here. The Nostrand case contrasts with the Petitioners’ citation to Huntamer v. Coe, 40 Wn.2d 767, 246 P.2d 489 (1952), where the challenged statute required an oath or affidavit from candidates for office stating that the candidate was not a subversive. Plaintiffs there stated that they would be prevented from becoming candidates because they could not or would not take the oath. The court adjudicated the question anyway. However, Nostrand, decided later, inferred the opposite view on the necessity that the action governed by the challenged statute have occurred before a challenge may be brought. We agree with Nostrand. Thus, the cases cited by the Petitioners do not compel us to reach the conclusion that this court will readily ignore justiciability requirements. We choose instead to adhere to the longstanding rule that this court is not authorized under the declaratory judgments act to render advisory opinions or pronouncements upon abstract or speculative questions. Washington Beauty College, Inc. v. Huse, 195 Wash. 160, 164, 80 P.2d 403 (1938). See also Kitsap Cy. v. Bremerton, 46 Wn.2d 362, 370, 281 P.2d 841 (1955); DeGrief v. Seattle, 50 Wn.2d 1, 14, 297 P.2d 940 (1956); Brehm v. Retail Food & Drug Clerks Union 1105, 4 Wn.2d 98, 101, 102 P.2d 685 (1940). In addition, even if we completely ignored the well-established justiciability rules, this does not mean that the court may issue a declaratory judgment where the court does not have original jurisdiction as provided by the constitution. With the exception of the unusual State ex rel. Distilled Spirits Inst., Inc. v. Kinnear, 80 Wn.2d 175, 492 P.2d 1012 (1972) case, in all declaratory judgment cases the Petitioners cite for the proposition that jurisdiction should be exercised broadly, the action began in the superior court and we then granted review. Much of the briefing of the Respondents and Intervenors is directed to the argument that the Petitioners do not have standing. Because this action fails under the general justiciability standards as discussed, and because we do not have original jurisdiction over this action, we will not engage in a lengthy analysis of the standing issue. A few points are of note, however. The standing doctrine prohibits a litigant from raising another’s legal rights. The kernel of the standing doctrine is that one who is not adversely affected by a statute may not question its validity. Haberman v. WPPSS, 109 Wn.2d 107, 138, 744 P.2d 1032, 750 P.2d 254 (1987) (citing Allen v. Wright, 468 U.S. 737, 750-51, 82 L. Ed. 2d 556, 104 S. Ct. 3315, reh’g denied, 468 U.S. 1250, 82 L. Ed. 2d 942, 105 S. Ct. 51 (1984)), appeal dismissed, 488 U.S. 805 (1988). None of the Petitioners have alleged concrete harm under the legislation. Legislator Petitioners have not stated what legislation has failed to pass under the enactment process established by the initiative, or what interest they have in that legislation. The citizen Petitioners have not alleged that any benefit has been denied to them at this time. Standing seems to be based only on taxpayer standing. Here, the initiative purportedly limits expenditures and taxes. According to one declaration, "the Legislature is actively considering tax cuts now.” Ex. O (Declaration of Art Wang), at 4. Although this court has frequently recognized taxpayer standing, State ex rel. Tattersall v. Yelle, 52 Wn.2d 856, 859, 329 P.2d 841 (1958), and a number of the Petitioners are taxpayers, it is questionable whether taxpayers have standing to protest limits on taxation. See State ex rel. Smith v. Haveland, 223 Minn. 89, 93, 25 N.W.2d 474 (1946) (stating that the "mere denial of a desire to be taxed is not an act adverse or hostile to any legal interest”). The affidavits submitted to claim that Initiative 601 is currently causing harm relate only to the problems of government officials. There is no affidavit by a taxpayer relating to harm to taxpayers. Instead, in the Petition, it is repeatedly stated that a given petitioner, as "a taxpayer of the State of Washington” will be "affected by and have an interest in implementation of Initiative 601 and its impact on the state revenue process.” Petition, at 4, 6. Although a taxpayer need not allege a personal stake in the matter, but may bring a claim on behalf of all taxpayers, Tacoma v. O’Brien, 85 Wn.2d 266, 269, 534 P.2d 114 (1975), it is more questionable whether taxpayer standing is appropriate to protest legislation which, by the Petitioners’ own claims, will decrease state expenditures and make the raising of taxes more difficult. Nevertheless, even if this court were to hold that the Petitioners had standing, this action is still not justiciable at this time for the reasons given above. For clarity, we reiterate that the discussion until this point has been directed at those sections of the initiative not yet in effect. We now move on to examine the issues surrounding sections 8 and 13. Section 8, currently in effect and which will remain in effect, provides that "[n]o fee may increase in any fiscal year by a percentage in excess of the fiscal growth factor for that fiscal year without prior legislative approval.” Laws of 1994, ch. 2, § 8, p. 23. The Petitioners are challenging section 8 on the grounds that in limiting the fee-setting authority of administrative agencies, the initiative did not set out all the fee-related statutes which would be "amended” by this provision. Despite the fact that section 8 is in effect, Petitioners’ challenge to section 8 is not justiciable as brought. A great deal of additional briefing would be necessary to bring a viable challenge to section 8. For example, although the Petitioners provide a list of fee statutes they claim are amended by section 8, some of these statutes may not actually come within the purview of section 8. See Br. of Resp’ts, at 44 n.23. The Petitioners make no argument at all regarding these statutes and whether each one has, in fact, been amended by section 8, but merely give cites to hundreds of statutes. We do not wish to address a matter which is not specifically briefed, and is completely unsupported by adequate argument. Saunders v. Lloyd’s of London, 113 Wn.2d 330, 345, 779 P.2d 249 (1989). We certainly will not, on our own, analyze each and every statute referred to by the Petitioners to determine whether section 8 has improperly amended the statute. That task is for the Petitioners to undertake. Furthermore, the Petitioners can assert no harm to themselves or others. The Petitioners have not claimed that state agencies have been unable to increase fees, nor is there a claim that section 8 has impeded an agency’s ability to raise fees. According to the Respondents, at least three agencies have obtained permission to raise fees. Br. of Resp’ts, at 6. Thus, the Petitioners identify no concrete harm. The Petitioners do not allege interest in any particular fees. None of the Petitioners claim to be responsible for imposing fees, nor claim to be the beneficiaries of services provided by the fees. As to those Petitioners who claim taxpayer standing, there is no claim as to how section 8 will affect the expenditure of state funds or will cause them to pay higher taxes. In addition, there is no pleading relating to the nature of the writ of mandamus being requested to bar implementation of section 8. No official has been identified. The only remedy which the Petitioners appear to seek in regards to section 8 is a declaration that the section is unconstitutional. We have no original jurisdiction to issue such a declaratory judgment. In short, the Petitioners have identified no grounds on which mandamus could issue based on the facts and allegations presented. We will not hear a challenge to section 8 of the initiative as "incidental” to the Petitioners’ other claims, as the Petitioners urged at oral argument and in the briefing. In Yelle v. Bishop, 55 Wn.2d 286, 347 P.2d 1081 (1959), cited by the Petitioners at oral argument, this court considered a claim similar to the one the Petitioners make regarding section 8, as part of a declaratory action by the State Auditor challenging the constitutionality of an act creating a new budget and accounting system. The fact that in Yelle this court considered the claim that the budgetary and accounting act had improperly amended prior law, along with its review of the Auditor’s other claims, does not mean that this court will hear a similar claim in this case. In Yelle, the entire action was properly before the court: all the challenged provisions were in effect; the Auditor had an interest in the entire act as it affected the operation of his office; and, the claim was properly brought in superior court as a declaratory judgment action. Here the claim is being brought in on the shirttail of a mandamus action, which is improperly before us in the first place. Further, the Petitioners cannot cite to the same interest in the operation of section 8 as the State Auditor could point to in Yelle. In sum, the record here is inadequate to fashion any kind of relief in regards to section 8 under the court’s original mandamus jurisdiction, or to provide declaratory relief. The other provision currently in effect, section 13, provides: After the effective date of this section, the state may raise existing taxes, impose new taxes as authorized by law, or make revenue-neutral tax shifts only with approval of a majority of the voters at a November general election. . . . Laws of 1994, ch. 2, § 13, pp. 23-24. The Petitioners claim that there are four bills passed by the Legislature which may fall under section 13, although they provide no analysis of whether the bills are, in fact, subject to section 13. Indeed, three out of the four bills do not, by their own terms, fall under the ambit of section 13 at this time. Those three bills, Engrossed Substitute House Bill 2326, Substitute Senate Bill 6307, and Engrossed House Bill 2670, go into effect without voter referral, unless a court declares that referral would be necessary in order to comply with Initiative 601. Br. of Pet’rs, at 39-40. There is no indication that any of these three bills are the subject of a court action to rule whether they are within the ambit of Initiative 601 and certainly they are not before us now to make such a determination. The only bill which is at this time subject to voter referral is Engrossed Second Substitute House Bill 2319 (E2SHB 2319). However, the Petitioners themselves appear to doubt that they have a clear case for a writ directed at referral of E2SHB 2319, in that they state only that "[flour of the measures passed during the session were revenue measures arguably within the ambit of Initiative 601.” Br. of Pet’rs, at 39. Although only one of the bills is possibly subject to the referral provisions of section 13 at this time, the Petitioners state in their brief that the writ should direct the Secretary of State not to certify any of the "measures recently enacted by the Legislature in its 1994 session” to the ballot. Br. of Pet’rs, at 42. Such a writ would be based only on speculation as far as three of the four bills. No writ directed at E2SHB 2319 is requested in the Petition, and in the Petition itself, the requested relief is that the Secretary of State adhere to the constitution. After E2SHB 2319 passed, the Petitioners might have amended the Petition to specifically request a writ directed at the referral of this bill. They did not do so. We have held that the writ cannot be any more specific than the petition. State ex rel. Pacific Am. Fisheries v. Darwin, 81 Wash. 1, 12, 142 P. 441 (1914). Without a request in the petition for a specific writ directed to prohibit the Secretary of State from certifying E2SHB 2319 to the ballot, we will not, on our own, craft such a remedy. Furthermore, the only officer with any duty under E2SHB 2319 and section 13 of Initiative 601 is the Secretary of State. Nevertheless, the Petitioners are seeking a writ directed at four state officers, compelling compliance with the constitution. As stated above, we will not issue such a broad and indefinite order. The ambiguities surrounding E2SHB 2319 and section 13 further reveal the impropriety of review at this time. The grounds on which the Legislature is referring the bill are not clear. Section 911 of E2SHB 2319 refers the bill "in accordance with Article II, section 1 of the state Constitution, as amended, and the laws adopted to facilitate the operation thereof. . .”. Ex. D, at 201. Referring a bill to the voters is a constitutional power of the Legislature, and we will not interfere with that power. The referral then contains the proviso of "unless section 13, chapter 2, Laws of 1994 [Initiative 601], has been declared invalid or otherwise enjoined or stayed by a court of competent jurisdiction.” Ex. D, at 201. The Petitioners do not address the validity of such a conditional referral and we are unclear as to its effect on a writ of mandamus. Another ambiguity is that the tax provisions of E2SHB 2319 are not currently effective, but will only go into effect on July 1, 1995. Sections 901, 902 and 903 of E2SHB 2319 remove the July 1, 1995, time limit for certain taxes to expire, thereby extending the taxes indefinitely. Section 904 removes a time limit on the tax of cigarettes and increases the amount of tax. Sections 905 through 907 make changes to the tax on carbonated beverages and syrup. Sections 904 to 908 do not take effect until July 1, 1995. It is not clear what effect Initiative 601 has on a bill currently passed, but which raises taxes as of July 1, 1995. Legislation passed now, raising taxes in the future, may be conceived of as a way to raise taxes in the future, without then subjecting the legislation to a super majority requirement, as would a tax bill passed after July 1, 1995. It is unclear whether this is a permissible method to avoid the strictures of Initiative 601. Finally, a writ directed to E2SHB 2319 and section 13 would not bring the rest of the Petitioners’ claims before the court. Petitioners state that declaratory and injunctive relief should be granted as incidental to a writ of mandamus and quote the following passage: "If any part of the relief to which the petitioner is entitled is by writ of mandamus the court will try out all incidental questions in the mandamus proceeding.” State ex rel. Gillette v. Clausen, 44 Wash. 437, 443, 87 P. 498 (1906). Petitioners are reading this statement incorrectly and out of context. An examination of Clausen shows that the above comment refers to questions incidental to the specific issue subject to the mandamus proceeding. This statement is followed by a discussion of how facts may be controverted, a trial may be had on the issues of fact raised, and damages and costs may be awarded. The court was simply explaining that complete relief may be granted in a mandamus proceeding, even though it is an extraordinary remedy. The point was that a mandamus proceeding has all the elements of a civil action. Clausen, at 443. The statement does not stand for the proposition that if the Petitioners have a proper action for a writ of mandamus, other matters may also be resolved, where those matters are not part of the issue to be remedied by mandamus. If a matter is subject to a writ of mandamus, then a declaration of the validity of the law regarding that specific matter or injunctive relief may also issue, but only as to the issue involved in the mandamus action. One issue properly before the court does not carry with it any number of other issues which would otherwise be dismissed for lack of an essential element. Therefore, even if mandamus were granted as to E2SHB 2319 and section 13, this court could not reach other, unrelated issues, where those issues would not be subject to a mandamus action, but are simply contained in the same act. Section 13 does not involve the super majority requirement, but only voter referral. E2SHB 2319 passed with a simple majority. Because consideration of a referral under section 13 does not implicate the Petitioners’ major contentions regarding the super majority requirement, we could only give an advisory opinion as to this portion of the action. We will not do so. Washington Beauty College, Inc. v. Huse, 194 Wash. 160, 164, 80 P.2d 403 (1938). In sum, the referral of one bill under section 13, a bill which passed by a simple majority, is not enough to grant a writ directed at the four state officers named and not enough to reach most of the substance of the Petitioners’ claims. The Petitioners only summarily argue that E2SHB 2319 is referred pursuant to section 13, and make that argument in conjunction with the specious argument that three other bills are subject to section 13. Out of 10 briefs and over 200 pages of briefing, the discussion of this bill is no more than a handful of lines in a few briefs, and no mention of the bill is made in the Petitioners’ Reply Brief, despite the lengthy arguments on the motion to dismiss made in the opposing parties’ briefs. This is far too slim a reed on which to hang major challenges to the entirety of an initiative, most of which is not yet in effect. The Petitioners have filed no amended petition asking for relief directed specifically at the referral of E2SHB 2319. We are not even sure that the referral is pursuant to section 13. Thus, we will not entertain this entire action on the basis of E2SHB 2319 and section 13 of Initiative 601. This original action is improperly before this court on application for a writ of mandamus and further, is not justiciable at this time. We dismiss the action. Andersen, C.J., and Dolliver, Durham, Smith, Guy, and Madsen, JJ., concur.

Madsen, J. — At issue in this case is whether the trial court erred in granting summary judgment on the question of whether a service area agreement between a public utility and a rural electric cooperative was breached by a customer’s transfer of power from the utility’s service area for use in the cooperative’s service area, and whether the utility’s actions with regard to the cooperative violated Washington’s Consumer Protection Act, RCW 19.86. Facts Tanner Electric Cooperative (Tanner) is a nonprofit rural electric cooperative which was formed in 1936 pursuant to the Rural Electrification Act. The basic purpose of the Act was to extend electric service to those rural areas of the country without central station service by providing government loans at low interest rates. Charles F. Phillips, Jr., The Regulation of Public Utilities 560 (1984). "When Tanner began its operations it had 32 customers on 13 miles of line. Tanner’s headquarters are in North Bend, Washington. In addition to serving North Bend, Tanner serves the Ames Lake area and Anderson Island. Tanner’s 1992 annual report stated that its business is "the transmission and distribution of electrical power to rural areas in King County and to Anderson Island at Pierce County.” Videotape Recorded Proceedings at 665. Tanner receives its electric power from Bonneville Power Administration (BPA) in accordance with a demand contract. This contract requires BPA to provide all of Tanner’s power needs up to 25 megawatts. Puget Sound Power & Light Company (Puget) delivers BPA’s power to Tanner pursuant to a 1966 general transfer agreement with BPA. Puget delivers the power to Tanner by "wheeling” it over Puget’s transmission lines to a single breaker switch in Puget’s North Bend substation (a point of delivery). Videotape Recorded Proceedings at 305-06. The Puget/ BPA contract places a 2.6 megawatt limit on the power wheeled to Tanner. On July 29, 1966, Tanner and Puget entered into a territorial service area agreement (hereafter referred to as the 1966 agreement). The 1966 agreement sets forth the boundaries of the respective service areas and also provides as follows: 1. Puget agrees to wheel BPA power to Tanner for use in Tanner’s North Bend and Ames Lake service areas pursuant to and within sixty (60) days of the execution of an agreement between Puget and BPA for the wheeling of BPA power to Tanner for a period of twenty (20) years. 4. Puget agrees that it shall not directly or indirectly dis tribute, wheel, transfer or sell electric energy within the limits of Tanner’s service areas. Ex. 2 at 2. Pursuant to RCW 54.48, which requires that agreements dividing service territories between public utilities and cooperatives be regulated by the Washington Utilities and Transportation Commission (WUTC or the Commission), the parties submitted the 1966 agreement to the WUTC for approval. Approval was granted in 1974, shortly after the enactment of RCW 54.48. In April 1989, Tanner completed a 1990-91 work plan that projected that its load in the North Bend area would exceed its 2.6 megawatt demand limit at the North Bend substation during the 1990s. After reviewing this projection and consulting with Tanner, BPA decided to plan a new North Bend area substation with Puget. BPA also asked Puget to increase Tanner’s North Bend wheeling demand limit to five megawatts. To date, Puget has not agreed to raise the contractual limit on power wheeled to Tanner. In the spring of 1990, Nintendo of America, Inc. (Nintendo) purchased a 125-acre parcel of property in North Bend. Approximately 80 percent of the property that Nintendo purchased is within Tanner’s service area, as set forth in the 1966 agreement, while the remaining 20 percent is within Puget’s service area. Nintendo constructed a $50 million automated distribution facility on Tanner’s side of the property. This facility is the only Nintendo distribution center in the United States. Once fully operational, the facility anticipated a daily production of some 70 trailer loads of Nintendo video games. Elmer Sams, Tanner’s manager, met with representatives of Nintendo several times in an effort to determine Nintendo’s power needs and to solicit Nintendo’s business. Nintendo’s electrical contractor told Sams that Nintendo planned to build five buildings and a parking lot on the property over a six-year period. According to Sams, the contractor also projected that Nintendo’s total electric load would be approximately 20 megawatts. Sams recommended that Nintendo allow Tanner to install a primary service meter box along Northwest 8th Avenue, which borders part of the Nintendo site and divides the Tanner and Puget service areas. By making such an arrangement, the meter box could be tied into the underground cable that Tanner was planning to install at this location pursuant to its 1990-91 work plan. Further, Sams assured Nintendo officials that Tanner could serve the load to the first building from its existing distribution line on Northwest 8th Avenue. Sams gave Nintendo a proposed commercial rate schedule that was prepared solely for Nintendo. Tanner had never before served a primary meter customer, or a customer which itself distributes the power after it has been supplied to a meter on the customer’s property. After several conversations with Sams, Nintendo officials grew concerned about Tanner’s ability to serve the Nintendo facility. Of specific concern was that (1) Tanner’s service crew consisted of four people who were responsible for the three service areas, which in some instances are separated by distances as great as 60 miles or are accessible only by ferry; (2) Tanner had less than a dozen employees, including office staff; (3) Tanner used the least reliable "radial feed” distribution configuration; (4) Tanner employed an older form of cable, potentially subject to a degradation process known as "treeing”; and (5) Tanner had never served a customer comparable to Nintendo. Videotape Recorded Proceedings at 1571, 1574-76. Puget also told Nintendo that it would refuse to let Tanner tap Puget’s Snoqualmie line near the Nintendo property, thus preventing Tanner from gaining a second point of delivery. On July 19, 1990, Puget advised Tanner that it was terminating the 1966 agreement with the one-year notice required by that agreement. The termination date was September 27, 1991. Puget then suggested a possible purchase of Tanner, which Tanner rejected. In September 1990, Puget told Tanner that it would be serving Nintendo’s facility pursuant to Nintendo’s request. Tanner told Nintendo that such an arrangement would violate section 4 of the 1966 agreement, quoted above. Despite this information, 'Nintendo accepted Puget’s service on January 17, 1991, eight months before the 1966 agreement expired. Puget delivered power to a meter in a structure built by Nintendo on Puget’s side of the service area boundary, located along Northwest 8th Avenue. From there, Nintendo, using its own lines, transported the electricity across the Puget-Tanner border to the Nintendo facility in Tanner’s service area. Shortly before this service began, Tanner filed a petition for a declaratory order with the WUTC, seeking a ruling that Puget had no statutory duty to serve Nintendo and that Puget had violated the 1966 agreement. The Commission concluded that Puget did not have a statutory obligation to serve Nintendo, but that no Commission law prohibited such service. The Commission found that it did not have jurisdiction to enforce or interpret the 1966 agreement. On April 19, 1991, Tanner filed a complaint for injunctive relief and damages against Puget in King County Superior Court. Tanner sought an immediate cessation of Puget’s service to Nintendo as well as an order requiring Puget to furnish whatever power Tanner needed to serve Nintendo. The trial court denied Tanner’s requests, whereupon Tanner filed an amended complaint bringing claims for breach of contract, tortious interference, common law unfair competition, and violation of the Consumer Protection Act. Tanner’s bases for these claims included Puget’s service to Nintendo as well as Puget’s failure to increase Tanner’s wheeling demand limit or to allow Tanner a new point of delivery from which to serve Nintendo; Puget’s failure to upgrade the transformer at the North Bend substation; and Puget’s refusal to negotiate in good faith with Tanner and the BPA to finalize and implement a plan of service by which both Tanner and Puget would provide adequate service to all customers. Nintendo and the WUTC were granted leave to intervene in the action. Tanner then moved for partial summary judgment on its breach of contract claim. The trial court granted Tanner’s motion and concluded as follows: While the Nintendo property straddles the boundary of the Puget/Tanner service areas and Puget delivers power to Nintendo at a point on the Nintendo property that is within [the] Puget service area, all of the Nintendo facility is located within the Tanner service areas. . . . The court has ruled that in construing this agreement, it is the point-of-use of power, not the point-of-delivery, that controls. Clerk’s Papers at 593. The trial court also held it undisputed that Tanner stood ready to deliver power to Nintendo in a sufficient quantity to meet Nintendo’s needs. Puget’s motion for reconsideration of the summary judgment ruling was denied. The case was tried before a jury during February and March of 1993. During trial, the court dismissed Tanner’s claim of unfair competition. At the close of trial, and pursuant to the summary judgment ruling, the jury was instructed that Puget had breached the 1966 agreement. On March 4, 1993, the jury returned a verdict for Tanner on its three remaining theories of liability and awarded $2.5 million in damages. In addition, the court awarded $410,000 in attorney’s fees under the Consumer Protection Act and $8,816.04 in costs. The final judgment totalled $2,918,816.04. Puget appealed, and this court accepted the motion to transfer the appeal pursuant to RAP 4.3. Two issues control its resolution. I The first issue presented to us is the propriety of a summary judgment determination on Tanner’s breach of contract claim. To untangle the web which has been woven in this case it is necessary to review the procedural path over which this dispute has traveled as well as the regulatory framework which guides the resolution of service area disputes. This case highlights the reasons for, and the importance of, the review process for administrative decisions. At issue here is not the alleged breach of a simple contract between two private parties, but the alleged breach of a service area agreement entered into by a public utility and a rural electric cooperative pursuant to statutory authority. Our review of the applicable statutes leads us to conclude that the WUTC has jurisdiction not only to approve or disapprove service area agreements but also to apply and interpret relevant statutes where a dispute arises pursuant to such an agreement and to issue appropriate orders. The following discussion shows why the WUTC’s failure to fully exercise such authority rendered it necessary for this court to review the resulting issues. When the disagreement initially arose between Tanner and Puget over service to Nintendo, Tanner appropriately sought intervention by the WUTC. In its petition to the WUTC filed in December of 1990, Tanner sought a ruling as to whether Puget had a statutory obligation to serve Nintendo upon request. Tanner also asked for an order declaring that Puget’s service of Nintendo violated the 1966 agreement reached between Tanner and Puget and approved by the WUTC. The 1966 agreement which Tanner sought to have interpreted by the WUTC sets forth the rights, responsibilities, and service boundaries of both Puget and Tanner. The 1966 service area agreement is authorized by RCW 54.48.030 which provides in part that [A]ny public utility and any cooperative is hereby authorized to enter into agreements with any one or more other public utility or one or more other cooperative for the designation of the boundaries of adjoining service areas which each such public utility or each such cooperative shall observe, for the . . . orderly extension of service in adjoining areas not currently served by any such public utility or any such cooperative .... RCW 54.48 was adopted in 1969 to permit service area agreements between public utilities and cooperatives. Without this statutory validation, service area agreements would be invalid as violative of antitrust laws. See 14 Samuel Williston, Contracts § 1653, at 358 (Walter Jaeger ed., 3d ed. 1972); Fuchs v. Rural Elec. Convenience Coop., Inc., 858 F.2d 1210, 1212 (7th Cir. 1988), cert. denied, 490 U.S. 1020 (1989). RCW 54.48.020 sets forth the purpose of this legislation and of the agreements it promotes: The legislature hereby declares that the duplication of the electric lines and service of public utilities and cooperatives is uneconomical, may create unnecessary hazards to the public safety, discourages investment in permanent underground facilities, and is unattractive, and thus is contrary to the public interest and further declares that it is in the public interest for public utilities and cooperatives to enter into agreements for the purpose of avoiding or eliminating such duplication. RCW 54.48.030 specifies that the WUTC shall have the authority to approve these agreements and provides that compliance with such agreements is required by law. In addition to this specific grant of authority over service area agreements, RCW 80.01.040 grants the WUTC broad authority to regulate the practices of public utilities. (In return for their monopoly status, public utilities are regulated by the State through the WUTC. See Jewell v. Washington Utils. & Transp. Comm’n, 90 Wn.2d 775, 776, 585 P.2d 1167 (1978)). The Commission may "[m]ake such rules and regulations as may be necessary to carry out” its duties. RCW 80.01.040(4). The WUTC also may "make and issue interpretive and policy statements when necessary to terminate a controversy or to remove a substantial uncertainty as to the application of statutes or rules of the commission.” WAC 480-09-200(1) (emphasis added). Whenever the commission shall find, after hearing, that any . . . practices, acts or services of any . . . electrical company . . . are unjust, unreasonable, improper, insufficient, inefficient or inadequate . . . the commission shall fix the reasonable rules, regulations . . . practices, acts or service to be thereafter furnished, imposed, observed and followed, and shall fix the same by order or rule. RCW 80.28.040. If an approved service area agreement no longer satisfies the purposes of RCW 54.48, the Commission may initiate proceedings to determine whether approval of the agreement should be withdrawn and the agreement thus invalidated. See RCW 80.01.100. Such an action clearly involves the assessment of whether the agreement is in compliance with statutory policy. In this case the WUTC issued its ruling on Tanner’s petition in March of 1991. In that ruling it stated that Puget did not have a statutory obligation to serve Nintendo but that no Commission law prohibited such service. The WUTC also concluded that it had no jurisdiction to interpret or enforce the 1966 agreement or to determine the parties’ rights thereunder. The WUTC denied Puget’s subsequent request for "reconsideration/clarification.” Neither party appealed this administrative ruling. See Jewell, 90 Wn.2d at 777 (judicial review of the WUTC’s actions is pursuant to the Administrative Procedure Act, RCW 34.05). Nor did either party seek a writ of mandamus to compel the Commission to either interpret the 1966 agreement or rescind its approval thereof pursuant to RCW 54.48.020. See RCW 80.04.170 (complainant affected by commission order, deeming such order to be contrary to law, may apply for a writ of review); see also State ex rel. Burlington N., Inc. v. Washington Utils. & Transp. Comm’n, 93 Wn.2d 398, 410, 609 P.2d 1375 (1980) (mandamus is appropriate remedy where agency has clear duty to act or refrain from acting). Tanner did, however, file a petition for injunctive relief in the King County Superior Court. When the superior court denied an injunction, Tanner filed the present action based on, among other claims, its allegation that Puget’s service to Nintendo breached the service area agreement. As noted earlier, the trial court granted summary judgment to Tanner on its breach of contract claim. To do so it ruled that the 1966 agreement between Tanner and Puget incorporated a point of use test for determining service disputes, and that Puget’s service to Nintendo violated that test. The court ruled further that evidence of Tanner’s ability to adequately serve Nintendo was not material to Tanner’s right to serve under the 1966 agreement. A party is entitled to summary judgment only when the trial court finds that there is no genuine issue as to any material fact, that reasonable persons could reach only one conclusion and that the moving party is entitled to judgment as a matter of law. Higgins v. Stafford, 123 Wn.2d 160, 169, 866 P.2d 31 (1994); Scott Galvanizing, Inc. v. Northwest Enviroservices, Inc., 120 Wn.2d 573, 580, 844 P.2d 428 (1993). In resolving a motion for summary judgment, the court must consider all facts submitted and make all reasonable inferences from the facts in the light most favorable to the nonmoving party. Scott, 120 Wn.2d at 580; Wilson v. Steinbach, 98 Wn.2d 434, 437, 656 P.2d 1030 (1982). Furthermore, in reviewing a grant of summary judgment, the appellate court engages in the same inquiry as the trial court. Scott, 120 Wn.2d at 580; Cowiche Canyon Conservancy v. Bosley, 118 Wn.2d 801, 811, 828 P.2d 549 (1992). Thus, in deciding this challenge to the trial court’s order of summary judgment, we review the same record that was available to the trial court and make all reasonable inferences from the facts in favor of Puget. See Scott, 118 Wn.2d at 580. The point of use test which the trial court applied is one of three tests used in the industry to resolve service area disputes. The point of use test dictates that only the utility authorized to serve within a territory may provide power to a facility within that territory. Public Serv. Co. v. Public Utils. Comm’n, 765 P.2d 1015, 1019 (Colo. 1988). The point of service, or point of delivery, test focuses on the point at which electricity is delivered rather than on the point at which it is consumed. If a utility provides electricity to a customer within its territory, the sale is proper, even if the customer transports the power into the territory of another utility for the customer’s use. Public Serv. Co., 765 P.2d at 1019. The geographic load center test permits the utility which serves a majority of a customer’s load to serve the entire load, regardless of the territorial boundaries of a service area. Public Serv. Co., 765 P.2d at 1019. Tanner argues that RCW 54.48 requires this court to read the point of use test into the 1966 agreement as a matter of law and thus uphold the trial court’s finding of breach. Puget responds that the 1966 agreement preceded the adoption of RCW 54.48 and contends that only statutes in effect at the time a contract is made become a part of the agreement. See Wagner v. Wagner, 95 Wn.2d 94, 98, 621 P.2d 1279 (1980); Dopps v. Alderman, 12 Wn.2d 268, 273, 121 P.2d 388 (1942) (parties presumed to contract with reference to existing statutes). While Puget makes a valid point, it is also true that a contract that is contrary to the terms and policy of an express legislative enactment is illegal and unenforceable. Vedder v. Spellman, 78 Wn.2d 834, 837, 480 P.2d 207 (1971); Waring v. Lobdell, 63 Wn.2d 532, 533, 387 P.2d 979 (1964). Furthermore, it is impossible to interpret the 1966 agreement without considering the purpose and policies of RCW 54.48 since that legislation was promulgated to encourage and validate service area agreements as discussed earlier. RCW 54.48 does not mention what test should be applied in a dispute over service to a straddling customer. To conclude that the 1966 agreement incorporates a point of use test as a matter of law, therefore, it must be clear either that public policy requires such an interpretation or that the parties intended to incorporate the test into their agreement and the test is not contrary to law. The WUTC and Tanner argue that the point of use test best serves the statute’s policy. The trial court agreed with Tanner and the WUTC that public policy required it to construe the 1966 agreement to include a point of use test. The court began its analysis by referring to the Washington statutes governing service area agreements and policy arguments made by the WUTC based on those statutes. The court also considered cases from other jurisdictions that have upheld application of the point of use test by utility commissions in resolving service area disputes. Those cases involved disputes arising as a result of straddling utility customers, or customers with facilities that cross a service area boundary. The trial court here decided that the dispute between Puget and Tanner involved a straddling situation to which the point of use test should apply, and thus concluded solely on the basis of these policy arguments that Puget’s service to Nintendo breached the 1966 agreement. Given the regulatory authority discussed earlier it is understandable that the trial court was influenced by the policy arguments made by Tanner and the WUTC as an intervening party. Unfortunately, while the trial court was persuaded by those policy arguments, the court did not directly address the March 1991 declaratory ruling issued by the WUTC. In that ruling, the WUTC declined to interpret either the 1966 agreement or the law applicable to this service dispute. The WUTC first stated that it had no jurisdiction to interpret the 1966 agreement. Ex. 45 at 7. After summarizing the parties’ positions, the WUTC stated the following: A valid Service Area Agreement can limit Puget’s statutory-obligation to serve, assuming that Tanner is willing and able to provide the service. If the Service Area Agreement is found to be enforceable, Puget does not have á statutory obligation to serve Nintendo under the stipulated circumstances. The determination of whether Puget may serve Nintendo must be made by the courts in connection with interpretation of the Service Area Agreement. No Commission law prohibits such service. Ex. 45 at 8. The WUTC did not refer to RCW 54.48 or the policies thereof, nor did it discuss whether a point of delivery, point of use or geographic load center test would have best effectuated public policy in the circumstances presented here. In its role as intervenor before the superior court and this court, however, the WUTC has proved more than willing to discuss statutory policy. The WUTC urges this court to "adopt the reasoning of the Commission” in its 1991 ruling which they say expressly rejected the point of delivery test as inconsistent with statutory policies and, instead, interpreted the agreement as incorporating a point of use test. Br. of Intervenor WUTC at 19-20. Unfortunately, the WUTC attempts to rewrite history by insisting that its current position is consistent with its declaratory ruling. We can find no reference in the WUTC order to statutory policy, to the point of use test, or to any other test used to resolve a straddling situation. Also perplexing is the fact that by stating in its order that no Commission law prohibited Puget’s service, the WUTC contradicted its current position that the point of use test applies to the 1966 agreement and proscribes Puget’s service of Nintendo. The WUTC’s present position is based not on the language of the 1966 agreement but on the public policy the Commission now finds in RCW 54.48. While we recognize that this clearly is an area ripe for deference to agency expertise, the contradictory positions taken by WUTC provide little assistance in resolving the present dispute. Moreover, for us to adopt the Commission’s present argument that the statute requires application of a point of use test and apply it retroactively to condemn service that the WUTC refused to halt makes little sense. The Commission’s current interpretation is not supported by its earlier ruling and appears to be nothing more than an isolated action that does not merit this court’s deference. See Cowiche Canyon Conservancy v. Bosley, 118 Wn.2d 801, 815, 828 P.2d 549 (1992) (no deference to agency because statutory interpretation applied was no more than an isolated action by the Department). Tanner and the WUTC also maintain here, as before the trial court, that the better-reasoned cases from other jurisdictions apply the point of use test to straddling situations. Whether this observation is correct or not, it is interesting to note that most of the cases cited' address an appeal of a utilities commission ruling that applied one of the three tests described earlier to a dispute between two electricity suppliers. Thus, unlike this case, which is cast solely as a breach of contract claim, those cases involved review of agency rulings. For example, the Colorado Supreme Court reversed the district court and upheld the public utilities commission’s application of the point of service test to a straddling situation in Public Serv. Co. v. Public Utils. Comm’n, 765 P.2d 1015 (Colo. 1988). The Colorado court stated that the PUC had made a policy decision concerning the point of service test, and that such a determination fell squarely within the expertise of the PUC. The court added that such a determination was an administrative matter "where there is broad latitude for sound discretion.” Public Serv. Co., 765 P.2d at 1020. See also Central Ill. Pub. Serv. Co. v. Illinois Commerce Comm’n, 202 Ill. App. 3d 567, 560 N.E.2d 363 (1990) (Illinois Commerce Commission had authority to resolve a straddling dispute arising under service area agreement and to apply point of use test to the dispute), appeal denied, 136 Ill. 2d 542 (1991). While it is clear from those cases that the point of use test has much to be said for it, especially in comparison to the point of delivery test, it is by no means apparent from them that the point of use test should apply in every service dispute between two electrical energy providers. See Public Serv. Co., 765 P.2d at 1022. Nor is it apparent that these holdings warrant application of the point of use test as a matter of law to service area disputes in Washington. In this state, service area, agreements are not mandated by law, as they are in most of the cases cited by WUTC and Tanner. Nor can we find that Puget’s service to Nintendo in this case undermines the policies of RCW 54.48. There was conflicting evidence regarding the extent to which service to Nintendo by either Puget or Tanner required duplication of existing facilities. Moreover, Puget furnished power to Nintendo from a primary meter located along Northwest 8th Avenue, which is the same street by which Tanner planned to install a meter for serving Nintendo. Since Nintendo would take the power from either meter using its own equipment, duplication resulting from Puget’s service appears unlikely. In addition, there was testimony that Tanner would have had to install an underground line to provide Nintendo with reliable service. Videotape Recorded Proceedings at 1829, 1851-52, 2224. Our review of the record places us in agreement with the trial judge who denied Tanner’s request for an injunction: [T]he legislative purpose does not appear to be undermined by permitting a utility to provide delivery of power to a point within the utility’s own service area for the transmission over the customer’s own lines to the point of use where the customer straddles a service boundary. Duplication of lines and service would not be avoided by requiring Nintendo to receive power from Tanner. On the contrary, plans A through D as described by [Tanner] in [its] testimony would result in some duplication of lines and equipment. Clerk’s Papers at 246-47. In sum, it does not appear that either statutory law or public policy require us to insert a point of use test into the Piiget/Tanner agreement. Because we conclude that a point of use test is not required by RCW 54.48, we turn to the question of whether the parties intended that test to apply to boundary questions under the 1966 agreement. The touchstone of contract interpretation is the parties’ intent. Scott, 120 Wn.2d at 580. In Washington, the intent of the parties to a particular agreement may be discovered not only from the actual language of the agreement but also from " 'viewing the contract as a whole, the subject matter and objective of the contract, all the circumstances surrounding the making of the contract, the subsequent acts and conduct of the parties to the contract, and the reasonableness of respective interpretations advocated by the parties.’ ” Scott, 120 Wn.2d at 580-81 (quoting Berg v. Hudesman, 115 Wn.2d 657, 663, 667, 801 P.2d 222 (1990)). Contractual language also must be interpreted in light of existing statutes and rules of law. 3 Arthur L. Corbin, Contracts § 551, at 198 (1960). Interpretation of a contract provision is a question of law only when (1) the interpretation does not depend on the use of extrinsic evidence, or (2) only one reasonable inference can be drawn from the extrinsic evidence. Scott, 120 Wn.2d at 582. It is undisputed that the agreement contains no express reference to a point of use test or any other test. The 1966 agreement first sets out the boundaries of Tanner’s service areas and then states as follows: "Puget agrees that it shall not directly or indirectly distribute, wheel, transfer or sell electric energy within the limits of Tanner’s service area above described . . . .” Ex. 2 at 2. Tanner argues that this language clearly prohibits Puget from delivering power in its own territory if it is for use within Tanner’s territory and reflects the parties’ intent to apply a point of use test for straddling customers. Although in its motion for reconsideration Puget offered extrinsic evidence that supported its contention that the parties never intended to incorporate a point of use test into the 1966 agreement, the court found that the evidence had no bearing on that agreement. I am not persuaded that I should change my mind, were I to hear in great detail about these prior incidents where some agreement was reached between Tanner and Puget about how to treat areas that straddled. Fortunately, they were able to resolve their differences and reach agreement. I don’t think that bears on how the Court must construe the agreement when there hasn’t been an agreement. Videotape Recorded Proceedings at 95. This conclusion was erroneous. Although the court said there was no agreement at all regarding service to straddling customers, the court went on to draw a conclusion about what the parties intended in such a circumstance. By concluding that the parties intended a point of use test, and importing that test into the agreement, the court tacitly acknowledged ambiguity with respect to straddling customers. To resolve that ambiguity the trial court considered only some of the extrinsic evidence offered — specifically the statute. The trial court erroneously concluded that the circumstances surrounding the making of the contract and the subsequent acts and conduct of the parties were irrelevant to its interpretation of the 1966 agreement. Of particular significance is the declaration submitted by Puget stating that the word "indirectly” never was intended to establish a point of use test. Clerk’s Papers at 636. "To the best of my knowledge, the parties never discussed which utility would serve a customer whose property straddled the boundary line.” Clerk’s Papers at 636. Indeed, a letter written by Puget to Tanner in 1967 acknowledged that the 1966 agreement did not address the problem of straddling customers. In that letter to Tanner, Puget set forth the parties’ understanding of the limitations of the 1966 agreement: This letter is to confirm our conversation and understanding of this morning. The service territory agreement between Tanner Electric and Puget Power does not specifically spell out which serving utility is entitled to serve a customer in the rather unusual event in which the prospective customer’s property lies across the boundary line set forth in that agreement. Ex. 3. The parties then decided that the utility with the most square footage of the customer’s building within its service area would serve that customer, in effect applying a geographic load test to determine service. This letter was not incorporated into the 1966 agreement and there is no evidence that the parties operated as though the 1967 letter were part of the agreement. Separate agreements executed by the parties in 1987 and 1988 for provision of power to subdivisions straddling the Puget/Tanner boundary do not refer to the 1967 letter and make very different arrangements for service. Clerk’s Papers at 247; Ex. 8, 9. In the 1987 straddling situation, the parties agreed that Tanner would serve Division One of a housing development while Puget would service Division Two of the same development. Ex. 8. The parties did not look to the percentage of a particular building on either side of the line, as they had in 1967, but assigned all the houses and lots in one housing division to a single utility. Similarly, the parties agreed in 1988 that Puget would serve one entire plat and Tanner another, thus permitting each party to supply electricity for use in the other’s service area. Ex. 9. On none of these occasions did Puget and Tanner purport to apply the 1966 agreement. We conclude, based on the above discussion, that the trial court erred in applying a point of use test to the 1966 agreement as a matter of law. Because issues of material fact exist as to what, if anything, the agreement contem plates in a straddling situation, we must reverse the grant of summary judgment for Tanner on this issue. Even if the language "indirectly distribute, wheel, transfer or sell electric energy” is read to mean that any form of conveying energy to a location within Tanner’s territory was prohibited, a straddling customer’s property by definition does not lie wholly within Tanner’s territory. Ex. 2 at 2. Therefore, the language relating to "indirectly” is ambiguous in these circumstances. The extrinsic evidence offered by Puget strongly indicates that the language does not resolve questions of service to a straddling customer. The court’s obligation is to ascertain the intent of the parties, and intent is very much a question here. The trial court also granted Tanner’s motion for summary judgment on the basis that evidence of Tanner’s inability to serve Nintendo was not material to Tanner’s right to serve under the 1966 agreement. The section of the 1966 agreement at issue provides as follows: [I]n the event Tanner shall fail, refuse or be unable to serve any person within any of its said service areas and such person shall make application to Puget therefor, Puget shall have the right to serve any such applicant if and to the extent it may be required to furnish such service under the Public Service laws of the State of Washington . . .. If a party makes a bona fide offer to provide service under terms and conditions applicable generally to its other customer[s] of the same class and within the same area, it shall not be deemed to have failed, refused or been unable to provide service under this paragraph. Ex. 2 at 3. Puget argued vigorously before the trial court, as it does here, that Tanner’s ability to provide adequate service to Nintendo was a factual issue that should have been decided by the jury. Both Puget and Nintendo discuss Nintendo’s sophisticated power needs and Tanner’s small-scale operations. They point to Tanner’s four-member service crew, its single-source radial feed distribution system, Tanner’s inadequate capacity and outdated equipment, its lack of an adequate plan of service for the Nintendo facility, and Tanner’s lack of experience with any large industrial customer. The trial court found these issues irrelevant given the wording of the 1966 agreement concerning a bona fide offer: Whether Puget’s service would be better than Tanner’s, or would suit Nintendo’s needs more adequately, would be factual issues. If material, they would prevent summary judgment in favor of Tanner on the issue of whether Puget breached the agreement. The parties, presumably recognizing the difficulty in resolving such issues, included the provision that if a party makes a bona fide offer to provide service under terms and conditions applicable generally to other customers of the same class within the same area, it shall not be deemed to have failed, refused, or been unable to serve. The application of this provision does not go beyond determining whether there was a [sic] offer of an adequate quantity of power at comparable terms. Clerk’s Papers at 594. Puget contends, however, that the bona fide offer provision is inapplicable because Tanner has no customers similar to Nintendo. (It is undisputed that Tanner has no other large industrial customers. Its next-largest customer is a McDonald’s restaurant. While Tanner does serve a mall with 38 stores and 5 other facilities, that service is provided via 43 separate meters rather than by one primary meter of the type required by Nintendo. Videotape Recorded Proceedings at 430.) Tanner maintains that the only purpose of this provision was to prevent discrimination between customers, but Puget maintains that another purpose was to create a test for determining whether Tanner has the ability to serve a particular customer. According to Puget, for the bona fide offer clause to apply, Tanner must already be providing power to customers of the same class, thereby demonstrating its ability to serve such customers. We again note Tanner’s status as a rural electric cooperative, and the fact that it gets a low-density discount from BPA because of its rural service. Videotape Recorded Proceedings at 667-68. It thus makes sense to assess Tanner’s ability to serve a large industrial customer. We find it more than possible to read the "bona fide offer” provision of the contract as requiring a genuine offer of service to encompass terms and conditions offered to similar customers, and to render an offer made without such terms and conditions somewhat suspect. The dictionary defines "bona fide” as "truly; actually; without simulation or pretense.” Black’s Law Dictionary 177 (1980). Whether Tanner’s offer of service to Nintendo, made without previous experience in serving such a large customer, was a true and actual offer is open to question. Given this uncertainty, the trial court erred in ruling that Tanner’s ability to serve Nintendo was not a material factual issue that prevented it from granting Tanner’s motion for summary judgment on its breach of contract claim. We conclude that there is a factual question regarding whether the 1966 agreement allows consideration of the utilities’ ability to serve similar customers when resolving a service dispute as well as whether the parties intended to incorporate a point of use test into the agreement. We therefore reverse the summary judgment order on Tanner’s breach of contract claim. II The next issue is whether the jury properly found that Puget violated Washington’s Consumer Protection Act, RCW 19.86 (hereafter referred to as the CPA). The purpose of the CPA is to complement the federal antitrust laws in order to protect the public and foster fair and honest competition. RCW 19.86.920; Martha V. Gross, Comment, The Scope of the Regulated Industries Exemption Under the Washington Consumer Protection Act, 10 Gonz. L. Rev. 415 (1975). Following the congressional lead taken in the federal antitrust laws, the Washington Legislature has "shielded various activities from the rigors of competition” by exempting them from the provisions of the CPA. Gross, supra at 415. Areas which are exempt from both the federal and state antitrust laws are labor, agricultural and horticultural organizations and "regulated industries.” Gross, supra at 415 (quoting RCW 19.86.170). The first question to be resolved under this issue is whether Puget is a regulated industry exempt from the CPA. The trial court ruled that Puget’s activities were not exempt in denying Puget’s motion for a directed verdict and thus let the jury decide whether the CPA had been violated. RCW 19.86.170 contains the exemption language that is at issue here: Nothing in this chapter shall apply to actions or transactions otherwise permitted, prohibited or regulated under laws administered by the insurance commissioner of this state, the Washington utilities and transportation commission, the federal power commission or actions or transactions permitted by any other regulatory body or officer acting under statutory authority of this state or the United States. . . . As explained earlier, service area agreements are both permitted and regulated under laws administered by the WUTC. Tanner maintains, however, that while Puget’s adherence to WUTC laws and regulations may be exempt from the CPA’s reach, a violation of those regulations is not exempt. More specifically, Tanner declares that Puget’s alleged breach of the 1966 service area agreement by serving Nintendo was not approved by the WUTC pursuant to RCW 54.48.030 and therefore does not render Puget exempt from CPA liability. Tanner’s other allegations of CPA violations focus on Puget’s refusal to increase the wheeling demand limit set forth by contract, Puget’s failure to cooperate in a comprehensive plan of service for the North Bend area, Puget’s termination of the service area agreement and its refusal to negotiate in good faith for a new one. Tanner maintains that these activities are outside the scope of the WUTC’s regulatory authority and thus outside the policies that would shield Puget from CPA liability under RCW 19.86.170. As we stated in Part I, we cannot conclude as a matter of law that Puget’s service of Nintendo breached the 1966 agreement. Moreover, even if a jury determines that Puget has breached the 1966 agreement by serving Nintendo and has otherwise injured Tanner, such transgressions do not subject the utility to liability under the CPA. The exemption extends to actions that are permitted, prohibited or regulated by the WUTC, not just actions permitted by the WUTC. (As the Statement of Facts makes clear, the conduct complained of by Tanner is directly related to Puget’s provision of electrical power.) Thus, Tanner’s reasoning that the exemption does not extend to Puget’s wrongdoing does not withstand analysis. Furthermore, Tanner’s interpretation would reduce the statutory exemption to a nullity, since a plaintiff could always find a way to argue that his CPA claim did not challenge the regulated transaction itself, but only the harmful effects that flow from the regulated transaction. We can find neither case law nor commentary that applies consumer protection laws to public utilities on the basis of whether the activities engaged in are permissible or unlawful. An exemption from consumer protection legislation either applies or it does not. See Southwestern Bell Tel. Co. v. Nash, 586 S.W.2d 647 (Tex. Civ. App. 1979); State ex rel. Guste v. Council of New Orleans, 309 So. 2d 290 (La. 1975). In explaining the scope of the CPA’s exemption provision, one commentator states that the CPA uses the same basic provisions as the federal antitrust laws in adopting their objective of promoting competition in open markets. Gross, supra at 421-22. Congress has, however, decided that competition should not be entirely free in some industries and has substituted regulatory agencies to administer the public interest. Gross, supra at 422; William L. McGovern, Antitrust Exemptions for Regulated Industries, 20 Fed. B. J. 10 (1960). By statutory authority, regulatory agencies may approve anticompetitive acts and practices which would, unless so immunized by agency action, violate the antitrust laws. Gross, supra at 422. Another authority explains the need for regulated monopoly in some industries: If competition is still an ultimate good in our economic system, it is not unqualifiedly so. Some areas of economic activity have long since been put under government monopoly. Many fall within the prohibitions of the antitrust laws. Where the number of enterprises that can exist efficiently in a field is severely limited, as with public utilities, government has had to furnish the necessary regulation which competition has been unable to provide. George E. Turner, Trends and Topics in Utility Regulation 267 (1969); see also Charles F. Phillips, Jr., The Regulation of Public Utilities 5 (1984) C'[I]f economic power is not to be controlled by the market, it must be controlled by public authority, for a firm’s contribution to the general welfare, rather than being the result of voluntary choice, must be compelled.”) An exemption for public utilities pursuant to the express exemption accorded WUTC transactions makes sense given the need for regulated monopoly in the power industry. As we stated earlier, the WUTC is charged with administering pervasive regulatory schemes that affect almost every phase of activity of the businesses under its authority. Gross, supra at 423. As part of this regulatory process, RCW 54.48.030 provides that the WUTC must approve all service area agreements entered into by public utilities and cooperatives. The impact of this regulation on the coverage of the CPA is described below: The public utilities industry is one where the legislature has decided that the public interest is best served by direct and uniform regulation of almost every phase of industry activity. Therefore, the public utility industry enjoys the maximum exemption from the [CPA]. To not exempt the activities of the public utilities could interfere with the coordinated system of rules controlling the public utilities, expose the public utilities to possible double liability and create a risk of varying adjudications. The statutory language is clear that, once a commission has acted on a matter over which it has authority, jurisdiction of the courts based on the Act is ousted. This exemption, which attaches even to actions prohibited by the regulatory agency, is broader than any exemption from federal antitrust laws granted by a federal agency. Gross, supra at 424. Tanner complains that it will be without a remedy for the wrongs it has suffered at the hands of Puget if the CPA exemption applies. Since the WUTC cannot grant monetary damages or issue an injunction, Tanner argues that its only antitrust remedy is in court. However, as one authority states, public service commissions do have regulatory power over service contracts: Commissions frequently examine service contracts and exercise their regulatory functions with due consideration of contractual provisions. They cannot, however, compel a party to execute such a contract or modify it. This does not mean that they cannot require the performance of services in a different manner, or at different rates, than prescribed by contract. They do not change the contract but their orders may supersede contractual provisions. Turner, supra at 252. The WUTC concedes that it can regulate the financial consequences of Puget’s conduct, and that it can withdraw its approval of service area agreements on its own motion. Moreover, should the commission rule that a practice of or service by a public utility is contrary to statutory policy there are stringent enforcement provisions in Title 80 RCW including private actions for damages. RCW 80.04.440 provides: In case any public service company shall do, cause to be done or permit to be done any act, matter or thing prohibited, forbidden or declared to be unlawful, or shall omit to do any act, matter or thing required to be done, either by any law of this state, by this title or by any order or rule of the commission, such public service company shall be liable to the persons or corporations affected thereby for all loss, damage or injury caused thereby or resulting therefrom, and in case of recovery if the court shall find that such act or omission was wilful, it may, in its discretion, fix a reasonable counsel or attorney’s fee, which shall be taxed and collected as part of the costs in the case. An action to recover for such loss, damage or injury may be brought in any court of competent jurisdiction by any person or corporation. Washington’s Consumer Protection Act was enacted to promote free competition in the marketplace for the ultimate benefit of the consumer. State v. Black, 100 Wn.2d 793, 799, 676 P.2d 963 (1984); Ballo v. James S. Black Co., 39 Wn. App. 21, 25, 692 P.2d 182 (1984). State law exempts public utilities from the sphere of free competition, and in fact discourages it. The regulation of public utilities by a state agency replaces competition and ensures that the public interest is protected. Given the language and purpose of the CPA, it makes sense to exempt Puget’s activities from liability thereunder. Any contention that this exemption lessens free and open competition in our economic system completely ignores the monopoly status of public utilities and their subsequent regulation by the WUTC. Moreover, the CPA exception for public utility actions does not mean that public utilities are allowed to run rampant. While their monopoly status necessarily means that economic competition is curtailed, remedies for egregious conduct on the part of public utilities remain, as our earlier reference to RCW 80.04.440 illustrates. This statute allows a private cause of action for anyone affected by a utility’s violation of state law or commission order. If an aggrieved party turns to the WUTC, the commission may investigate complaints, award refunds to overcharged consumers and assess penalties against violators. Gross, supra at 424. We find that given the WUTC’s express statutory authority to regulate improper, unjust, and unreasonable practices of electrical companies, Washington law provides the degree of regulation necessary to exempt all of Puget’s alleged misconduct from the CPA. See generally Title 80 RCW. In light of our resolution of these issues, we need not address the remaining questions raised by the parties. We reverse the trial court’s order of summary judgment and its decision regarding the CPA exemption and remand for further proceedings consistent with our decision. Durham, C.J., and Dolliver, Smith, Guy, and Alexander, JJ., concur. "'Wheeling” refers to the transfer of electricity "by direct transmission or displacement, of electric power from one utility to another over the facilities of an intermediate utility.” City of Chanute v. Kansas Gas & Elec. Co., 754 F.2d 310, 312 n.1 (10th Cir. 1985). RCW 54.48.040 makes it clear that while the Commission has authority over service area agreements between public utilities and cooperatives, cooperatives are not included in the definition of a public utility. Nor does the Commission have regulatory authority over cooperatives except with respect to service area agreements and agreements for the acquisition or disposal of duplicating utility facilities. When more punitive measures are necessary, RCW 80.04.380 gives the WUTC authority to issue daily fines of $1,000 to public service companies found to have violated a Commission order, rule, direction, or requirement, and RCW 80.04.015 allows the WUTC to order a utility to cease and desist from providing service unless it is in compliance with the applicable regulations. The trial court found this was a straddling case and no one disputes this finding. Videotape Recorded Proceedings at 95. This may be due to the contradictions between the language of the ruling and the WUTC’s position as intervenor, as well as to the fact that the ruling was not directly before the court as neither party had appealed the Commission’s ruling. While the evidence designed to show the parties’ intent was not submitted until Puget filed its motion for reconsideration, the trial court considered it before denying that motion. Thus, the documents are properly part of the this court’s consideration. See Scott Galvanizing, Inc. v. Northwest Enviroservices, Inc., 120 Wn.2d 573, 580, 844 P.2d 428 (1993). Since the jury was instructed that Puget breached the contract and that a breach of contract may satisfy the "improper means or purpose” element of tortious interference, the tortious interference verdict is also reversed.

Smith, J. Appellants Coryelle Tenore, Charles F. Peterson and Karen M. Cole, on behalf of themselves and all others similarly situated, seek direct review of a judgment of the King County Superior Court which dismissed their class action lawsuit on a Civil Rule (CR) 12(b)(6) motion based upon federal preemption of state law claims under 47 U.S.C. § 332(c)(3)(A) and the doctrine of primary jurisdiction. We granted review. We reverse the trial court. QUESTION PRESENTED The question presented is whether the trial court was correct in dismissing Appellants’ state law claims on a CR 12(b)(6) motion based upon federal preemption under 47 U.S.C. § 332(c)(3)(A) and the doctrine of primary jurisdiction. STATEMENT OF FACTS On October 24, 1995, Appellants Coryelle Tenore, Charles F. Peterson and Karen M. Cole, individually and on behalf of others similarly situated, filed in the King County Superior Court a class action complaint against Respondents AT&T Wireless Services and McCaw Cellular Communications, Inc. d/b/a Cellular One. Respondent AT&T Wireless Services (AT&T) is a wholly owned subsidiary of AT&T Corporation and provides cellular service in the Northwest region. McCaw Cellular Communications, Inc. d/b/a Cellular One (McCaw Cellular), also named as a defendant, was the largest provider of cellular telephone service in the country until it merged with AT&T. McCaw Cellular no longer exists as a separate entity. In their Second Amended Class Action Complaint, Appellants claimed that Respondent AT&T engaged in “deceptive, fraudulent, misleading and/or unfair conduct” by not disclosing its practice of “rounding” airtime in order to “induce cellular customers to use its cellular service, and/or in order to unfairly profit.” “Rounding,” “rounding up” or “full minute billing” is a common billing practice in the cellular and long distance telephone industry where fractions of a minute are rounded up to the next highest minute. For example, a call that lasts one minute and one second is charged as a two-minute call, but the subscriber is not informed of the actual duration of the call. Appellants claim this billing practice “results in millions of dollars of excess billing ... all at the expense of the unwary customer.” Appellants additionally claim this practice is “contrary to the ‘Service Agreement’ . . . which states that the customer is billed only for ‘the time you press send until the time you press end.’ ” Also, Appellants claim cellular customers do not receive the full minutes they have contracted for at a fixed rate under their service plan because of rounding. For example, all subscribers are required to choose between plans that offer varying specified minutes of airtime, such as 30, 60, or 100 minutes, for a fixed monthly rate, beyond which calls are billed at a specified per-minute rate. But a 30-minute plan may not in fact provide 30 full minutes because of rounding. This is what Appellants claim AT&T should have disclosed. Appellants filed state law claims in the King County Superior Court for breach of contract, negligent misrepresentation, fraud, and violation of the Washington Consumer Protection Act (CPA) under chapter 19.86 RCW. They requested, among other things, injunctive relief and compensatory damages in the form of a refund of the difference between the amount charged by AT&T and the amount class members would have incurred if AT&T had not engaged in the practice of rounding up without disclosing it. On April 29, 1997, AT&T moved for dismissal of the complaint by a CR 12(b)(6) motion based upon federal preemption of state law claims under 47 U.S.C. § 332(c)(3)(A) and the doctrine of primary jurisdiction. 47 U.S.C. § 332(c)(3)(A) provides in relevant part: Notwithstanding sections 152(b) and 221(b) of this title, no State or local government shall have any authority to regulate the entry of or the rates charged by any commercial mobile service or any private mobile service, except that this paragraph shall not prohibit a State from regulating the other terms and condition of commercial mobile services. AT&T contends this statute preempts Appellants’ state law claims because the monetary relief sought by Appellants would necessarily require a court to engage in rate regulation in determining the refund award for partial minutes of cellular service. AT&T further claims, under the doctrine of primary jurisdiction, that any challenge to the reasonableness of cellular rates must be deferred to the agency with expertise in rate regulation—in this case, the Federal Communications Commissions (FCC). While AT&T’s motion to dismiss was pending, the Court of Appeals, Division I, filed its decision in Hardy v. Claircom Communications Group, Inc., a case with a similar fact pattern to this one. The King County Superior Court, the Honorable J. Kathleen Learned, agreed with AT&T that Hardy is controlling and granted its motion to dismiss on June 13, 1997, stating: The Court concludes as a matter of law that this case is controlled by Hardy v. Claircom and therefore the plaintiffs’ state law claims are preempted by 47 U.S.C. § 332(c)(3)(A), and/or that the doctrine of primary jurisdiction requires that plaintiffs’ claims be referred to the FCC.[ ] Appellants, however, contend they are challenging only the allegedly misleading advertising practices of AT&T and not the underlying rates or charges. They argue it is within the authority of state courts to resolve their state law claims without FCC intervention. After the order of dismissal, Appellants sought direct review by this Court, which we granted on January 6, 1998. DISCUSSION Standard of Review Under CR 12(b)(6), a complaint can be dismissed for “failure to state a claim upon which relief can be granted.” A dismissal under this rule involves a question of law which is reviewed de novo by an appellate court and is appropriate only if it appears beyond doubt that the plaintiff cannot prove any set of facts which would justify recovery. In such a case, a plaintiff’s allegations are presumed to be true and a court may consider hypothetical facts not included in the record. CR 12(b)(6) motions should be granted “sparingly and with care” and “only in the unusual case in which plaintiff includes allegations that show on the face of the complaint that there is some insuperable bar to relief.” Hardy v. Claircom Communications Group, Inc: In dismissing Appellants’ complaint, the trial court concluded as a matter of law that it was bound by the decision of the Court of Appeals, Division I, in Hardy v. Claircom Communications Group, Inc., the only Washington case addressing the specific issues now before this Court. Appellants argue that Hardy should not control the decision in this case and that the two cases are distinguishable. AT&T claims Hardy is on point and urges this Court to follow it. The facts in Hardy are somewhat similar to the facts in this case. In Hardy Appellants Michael J. Hardy and Michael Lair brought class action lawsuits in the King County Superior Court against Claircom Communications Group, Inc., d/b/a AT&T Wireless Services (Claircom) and GTE Airphone, Inc. (GTE) claiming breach of contract, negligent misrepresentation, fraud and violation of the Washington Consumer Protection Act. Claircom and GTE provide air-to-ground radiotelephone services for passengers on commercial aircraft. Appellants claimed the companies were liable because the promotional materials provided to passengers aboard aircraft did not disclose the companies’ practice of rounding up airtime. The trial courts dismissed both appellants’ actions ruling their claims were preempted by 47 U.S.C. § 332(c)(3)(A) and barred by the filed tariff doctrine. The Court of Appeals affirmed on the same grounds. Filed Rate or Filed Tariff Doctrine The “filed rate” doctrine, also known as the “filed tariff’ doctrine, is a court-created rule to bar suits against regulated utilities involving allegations concerning the reasonableness of the filed rates. This doctrine provides, in essence, that any “filed rate”—a rate filed with and approved by the governing regulatory agency—is per se reasonable and cannot be the subject of legal action against the private entity that filed it. The purposes of the “filed rate” doctrine are twofold: (1) to preserve the agency’s primary jurisdiction to determine the reasonableness of rates, and (2) to insure that regulated entities charge only those rates approved by the agency. These principles serve to provide safeguards against price discrimination and are essential in stabilizing prices. But this doctrine, which operates under the assumption that the public is conclusively presumed to have knowledge of the filed rates, has often been invoked rigidly, even to bar claims arising from fraud or misrepresentation. Courts have construed the “filed rate” doctrine broadly in dismissing lawsuits against telecommunications carriers involving direct or indirect challenges to the reasonableness of rates. In Marcus v. AT&T Corp., subscribers to AT&T Corporation’s long distance telephone service brought class action lawsuits in the United States District Court claiming fraud, deceptive acts and practices, false advertising, negligent misrepresentation, and other state law actions for the company’s alleged practice of rounding up call charges without adequate disclosure. In addition to other forms of relief, plaintiffs sought compensatory damages from the defendant. AT&T claimed the “filed rate” doctrine barred their claims, but plaintiffs asserted their claims did not implicate the doctrine because they merely challenged AT&T’s alleged nondisclosure and deceptive advertising practices, and not the reasonableness of the underlying rates. The court dismissed plaintiffs’ state claims for damages in its entirety based upon the “filed rate” doctrine, stating that calculation of the damages plaintiffs sought would necessarily require the court to determine a reasonable rate in direct contravention of the “filed rate” doctrine. The United States Court of Appeals for the Second Circuit affirmed the decision on appeal. Other courts have dismissed similar actions under the “filed rate” doctrine. Respondent AT&T cites the Marcus case and related decisions in support of its federal preemption argument. This contention, however, is without merit, simply because this case does not implicate the “filed rate” doctrine. Under Section 203 of the Federal Communications Act of 1934 (FCA), all telecommunications common carriers are required to file tariffs with the FCC. Most telecommunications carriers, including long distance telephone service providers, come within the meaning of “common carrier,” which is broadly defined as “[a]ny person engaged in rendering communication service for hire to the public.” Thus, as required under Section 203(a) of the FCA, the defendants AT&T, NYNEX, and Sprint in Marcus, Wegoland, Cahnmann and Porr each had tariffs on file with the FCC. In this case Respondents AT&T Wireless Services and McCaw Cellular Communications, Inc. d/b/a Cellular One, are cellular telephone service providers, broadly characterized as commercial mobile radio service providers, and are specifically exempted from tariff filing requirements by the FCC. Because there is no tariff filing requirement, the reasonableness of rates charged by commercial mobile radio service (CMRS) providers is not determined by the FCC. Accordingly, not only are there no tariffs on file, but the two purposes behind the “filed rate” doctrine—preserving an agency’s primary jurisdiction to determine the reasonableness of rates and insuring that only those rates approved are charged—do not apply in this case. The authorities relied upon by Respondent AT&T are thus not applicable. In addition, AT&T claims the recent Court of Appeals, Division I, case, Hardy v. Claircom Communications Group, Inc., is controlling, although AT&T rests its argument on preemption and concedes the “filed rate” doctrine is not directly applicable. In Hardy, both defendants Claircom and GTE had tariffs on file with the FCC, and accordingly, to the extent dismissal was predicated upon the “filed rate” doctrine, the court’s decision was correct. However, there was a period of five months during which Claircom’s tariff was not filed, and the court correctly used preemption analysis to resolve the case during that brief period. Federal Preemption Recognizing the rapid growth of the cellular telecommunications industry, Congress in 1993 amended the FCA, 47 U.S.C. §§ 151-229 to provide a comprehensive and uniform federal regulatory framework for all CMRS providers. To accomplish its objective of regulatory uniformity and deregulation of CMRS, Congress amended Section 332 of the FCA to provide: Notwithstanding sections 152(b) and 221(b) of this title, no State or local government shall have authority to regulate the entry of or the rates charged by any commercial mobile service or any private mobile service, except that this paragraph shall not prohibit a State from regulating the other terms and conditions of commercial mobile services. According to the FCC, implementing preemption rules will serve an important purpose: to “help promote investment in the wireless infrastructure by preventing burdensome and unnecessary state regulatory practices that impede the federal mandate for regulatory parity.” AT&T asserts 47 U.S.C. § 332(c)(3)(A) preempts all of Appellants’ state law claims. The doctrine of preemption originates from the Supremacy Clause in Article VI of the United States Constitution, which generally results in declaring invalid state laws that are contrary to or interfere with the laws of Congress. The principal inquiry in preemption analysis is Congress’ objective or purpose in enacting a law. The intent of Congress may be expressly stated in a statue or implicitly contained in its structure and design. If Congress enacts a provision defining the preemptive reach of a statute, matters beyond that expressed scope are not preempted. Appellants argue the express language of Section 332 itself, which defines the FCA’s preemptive reach, allows states to regulate “the other terms and conditions of commercial mobile service” that do not relate to market entry or rate regulation. They assert these “other terms and conditions” include a carrier’s “advertising, marketing and contracting, which are distinct from the federally regulated issues of rates and entry.” A Congressional House Report on the Omnibus Budget Reconciliation Act of 1993 tends to support Appellants’ contention: It is the intent of the Committee that the states still would be able to regulate the terms and conditions of these services. By “terms and conditions,” the Committee intends to include such matters as customer billing information and practices and billing disputes and other consumer protections matters .[ ] At least one United States District Court that addressed the “terms and conditions” clause of Section 332 concluded the clause “permits state regulation of cellular telephone service providers in all areas other than the providers’ entry into the market and the rates charged to their customers.” Appellants additionally claim the “savings clause” in Section 414 of the FCA indicates Congressional intent to preserve state law actions that do not challenge market entry or rates charged to subscribers. 47 U.S.C. § 414 provides: Nothing in the chapter . . . shall in any way abridge or alter the remedies now existing at common law or by statute, but the provisions of this chapter are in addition to such remedies. Some courts have cited this provision in ruling against preemption of state law claims for charges involving billing or advertising practices. As Respondent AT&T contends, these cases, although factually similar, are not directly on point because they involve the question whether cases should be removed from state courts to federal courts and remain in those courts under the complete preemption doctrine. The courts in Bennett, Sanderson and DeCastro, applying 47 U.S.C. § 332(c)(3)(A), each ruled against complete preemption of plaintiffs’ state law claims and remanded the cases to state courts. Thus, the savings clause in Section 414, together with the “terms and conditions” clause in Section 332, defeats preemption in favor of preserving state law claims that do not attack or regulate market entry or rates. The gravamen of Respondent AT&T’s argument, however, is that Appellants’ request for monetary damages requires a court to retroactively establish new rates in determining damages, which, in effect, is state rate-making explicitly preempted by 47 U.S.C. § 332(c)(3)(A) of the FCA. Appellants assert they challenge only AT&T’s inadequate disclosure practices in connection with billing, and do not contest the reasonableness or legality of the underlying rates. AT&T counters by stressing that Appellants’ claim is essentially a disguised form of attack on the reasonableness of its rates. As authority for its contention, Respondent AT&T first cites three class action rounding cases that were dismissed by various courts. Those cases, however, do not significantly support AT&T’s position. Rogers, an Indiana Superior Court case, is a cursory order devoid of facts or legal analysis. In Simons, a case before the United States District Court for the Southern District of Texas, Respondent AT&T itself stated in its brief that the plaintiffs “challenged the reasonableness of early termination fees,” which made it proper for the court to dismiss on preemption grounds. And in Powers, a San Diego County Superior Court case, the plaintiffs claimed in their complaint that they were damaged by defendant’s “methods of determining or calculating the quantity of chargeable airtime usage,” which, as the court found, seemed more like an attack on rates than a challenge to inadequate disclosure. In this case, Appellants do not contend they were injured by AT&T’s practice of rounding its airtime. Instead, they claim only they were damaged by AT&T’s inadequate disclosure concerning that practice. They assert this type of claim, which alleges fraud or deceptive advertising and not the reasonableness of rates, should not be preempted. They cite several cases in support of their position. Appellants also cite Kellerman v. MCI Telecommunica tions Corp In that case, plaintiffs, seeking damages, brought a class action against their long distance telephone service provider for breach of Illinois’ consumer fraud and deceptive trade practices acts, claiming that certain of defendant’s advertisements and promotional materials were fraudulent and deceptive. The Illinois Supreme Court held the state law claims were not preempted, relying on the FCA’s savings clause,. Section 414, concluding: The subject matter of plaintiffs’ complaints involves neither the quality of defendant’s service nor the reasonableness and lawfulness of its rates. Plaintiffs only allege that defendant disseminated fraudulent and deceptive advertisements concerning the cost of its long distance telephone service.[ ] Appellants additionally cite DeCastro v. AWACS, Inc. In that case, plaintiffs brought a class action against defendant, a cellular telephone service provider, making various state law claims relating to defendant’s inadequate disclosure concerning certain billing practices. The case was removed to federal court on defendant’s motion, but the court remanded, ruling that the FCA does not provide an enforcement mechanism for claims involving failure to disclose billing practices, stating: [TJhese two claims center around Comcast’s alleged failure to disclose a particular billing practice; they do not challenge the billing practice as unreasonable or contrary to law, nor does their resolution require a court to assess the reasonableness of the defendant’s billing practice.[ ] Kellerman and DeCastro both conclude that the FCA does not displace, but instead supplements, state law claims against service providers for misrepresentation, fraud and unfair billing practices. The FCC itself has stated that the savings clause, Section 414: [Preserves the availability against interstate carriers of such preexisting state remedies as tort, breach of contract, negligence, fraud, and misrepresentation—remedies generally applicable to all corporations operating in the state, not just telecommunications carriers.[ ] AT&T challenges those cases as not constituting direct authority for the issue now before this Court. AT&T correctly notes that many of those cases were decided before Congress amended Section 332, and do not therefore refer to that provision; and that other cases involve the “complete preemption” doctrine, a related but different analysis than preemption under the explicit language of Section 332. Those cases nevertheless offer some support for Appellants’ assertion that their state claims are not preempted. Respondent AT&T also cites cases which offer support for its position, but those cases are not directly on point. Respondent cites authorities which stand for the proposition that damage awards are tantamount to rate regulation. But in each of those cases, either the harsh rule of the “filed rate” doctrine was implicated or the claims were found to be completely preempted by the regulatory agency’s exclusive and plenary authority. In Hardy v. Claircom Communications Group, Inc., the Court of Appeals, Division One, properly relied upon the “filed rate” doctrine to dismiss all of plaintiffs’ claims arising under it. However, for the five-month period during which there was no tariff on file, the court held that Section 332 preempted it, stating, “Hardy’s claims implicate not only the advertising practices of AT&T Wireless but also the reasonableness of the carrier charging the tariff rate in light of those practices.” The court concluded the claims are preempted because Hardy is challenging the reasonableness of the tariff “in light of those practices.” But there was no tariff filed for the five-month period. And the court used Section 332 preemption analysis solely to address the “5-month period during which AT&T Wireless concededly had no filed tariff in place.” Respondent now argues that cases have held that damages implicate rate adjustment and are tantamount to rate regulation; and even though those cases involved the “filed rate” doctrine, that reasoning should be extended to dismiss claims requesting damages because, although there is no “filed tariff,” the language of 47 U.S.C. § 332(c)(3)(A) preempts rate regulation. The position of Appellants, though, is bolstered by Nader v. Allegheny Airlines, Inc. In that case the plaintiff was denied boarding or “bumped” from his reserved and confirmed seat on Allegheny Airlines because the airline had overbooked its flights. Instead of accepting “denied boarding compensation,” plaintiff brought a common law action in the United States District Court for the District of Columbia claiming fraudulent misrepresentation because defendant did not disclose its deliberate overbooking practices. The plaintiff was not contesting the reasonableness of the overbooking practice itself, but only the nondisclosure of it. The District Court found for the plaintiff, but the United States Court of Appeals for the District of Columbia reversed, ruling that the matter must be referred to the Civil Aeronautics Board to determine whether defendant’s alleged failure to disclose its deliberate overbooking practice is deceptive. The Court reversed mainly on primary jurisdiction grounds, but did address an issue relevant to this case. The Supreme Court in Nader noted that the Court of Appeals relied on Texas & Pac. Ry. v. Abilene Cotton Oil Co. for its conclusion. Abilene is a “filed rate” doctrine case which dismissed a state law action that challenged a published carrier rate as “unjust and unreasonable” by reasoning that an action for damages attacking the reasonableness of federally regulated rates would undermine the purpose of the Interstate Commerce Act. The Court in Nader distinguished Abilene on the grounds that in Nader there was no “irreconcilable conflict between the statutory scheme and the persistence of common-law remedies.” In Abilene, the carrier would be put in an “únten able position” because it “could not abide by the rate filed with the Commission, as required by statute, and also comply with a court’s determination that the rate was excessive.” The Court in Nader noted that in such a case, “[t]he conflict between the court’s common-law authority and the agency’s ratemaking power was direct and unambiguous.” The Court then stated that in the case before it, the Court “in contrast, is not called upon to substitute its judgment for the agency’s on the reasonableness of a rate.” That was because there was no tariff provision requirement that airlines engage in or disclose the practice of overbooking. The Court concluded any “impact on rates that may result from the imposition of tort liability . . . would be merely incidental.” Thus, the Supreme Court reversed, holding that because the action “does not turn on a determination of the reasonableness of a challenged practice,” but only on the issue of disclosure of that practice, “[t]he standards to be applied in an action for fraudulent misrepresentation are within the conventional competence of the courts.” Similarly, in this case, the FCC does not require CMRS providers such as Respondent AT&T to file tariffs. AT&T does not dispute that billing and advertising practices are not governed exclusively by the FCA, if at all. This is a question we need not consider. Appellants do not attack the reasonableness of AT&T’s practice of rounding up call charges. They challenge only nondisclosure of the practice. Nader addresses the precise issue now before this Court. We consider it applicable authority. There is sufficient reliable authority for this Court to conclude that the state law claims brought by Appellants and the damages they seek do not implicate rate regulation prohibited by Section 332 of the FCA. The award of damages is not per se rate regulation, and as the United States Supreme Court has observed, does not require a court to “substitute its judgment for the agency’s on the reasonableness of a rate.” Any court is competent to determine an award of damages. Primary Jurisdiction In dismissing Appellants’ complaint, the King County Superior Court concluded their state law claims were preempted by Section 332 of the FCA “and/or that the doctrine of primary jurisdiction requires that plaintiffs claims be referred to the FCC.” “Primary jurisdiction” is a doctrine which requires that issues within an agency’s special expertise be decided by the appropriate agency. Under this doctrine claims must be referred to an agency if (1) the administrative agency has the authority to resolve the issues that would be referred to it by the court; (2) the agency has special competence over all or some part of the controversy which renders the agency better able than the court to resolve the issues; and (3) the claim before the court involves issues that fall within the scope of a pervasive regulatory scheme creating a danger that judicial action would conflict with the regulatory scheme. Respondent AT&T asserts the doctrine of pri mary jurisdiction requires that this matter be decided by the FCC. The basis of AT&T’s argument is no different than its contention concerning preemption—Appellants’ request for damages in effect requires a court to engage in rate regulation in determining a reasonable charge for partial minutes of airtime—and thus it should be referred to the FCC which has special competence and expertise in rate regulation. AT&T cites several cases to support its position. We do not consider those cases persuasive. Issues which call into question the legality or reasonableness of a carrier’s rates should properly be referred to the FCC. In our discussion on preemption we have already concluded that Appellants’, state law claims for nondisclosure did not constitute a challenge to the reasonableness of the rates, notwithstanding that they were requesting damages. Appellants cite cases which hold that matters not pertaining to tariffs or rates do not require agency expertise, but fall within the conventional competence of courts without the need for referral to the FCC. In Nader v. Allegheny Airlines, Inc., plaintiff brought common-law actions against defendant Allegheny Airlines over nondisclosure of its overbooking practices. The Supreme Court held the doctrine of “primary jurisdiction” did not require the misrepresentation claim to be referred to the regula tory agency, the Civil Aeronautics Board. The Court stated: The action brought by petitioner does not turn on a determination of the reasonableness of a challenged practice—a determination that could be facilitated by an informed evaluation of the economics or technology of the regulated industry. The standards to be applied in an action for fraudulent misrepresentation are within the conventional competence of the courts, and the judgment of a technically expert body is not likely to be helpful in the application of these standards to the facts of this case.[ ] Similarly, in this case there is no conflict between the authority of the FCC and that of a court in deciding whether AT&T’s advertising practices are misleading. As in Nader, Appellants in this case do not challenge the reasonableness of AT&T’s underlying practice of rounding its call charges. Also, although the FCC enacted the preemption provision in Section 332 to promote uniformity, it did so primarily to prevent burdensome and unnecessary state regulatory practices, and not to subject the CMRS infrastructure to rigid control. Nor does the FCC have exclusive authority over advertising and billing practices, if at all. AT&T also argues FCC jurisdiction is appropriate because an award of damages would violate “47 U.S.C. § 202, which specifically prohibits price discrimination among customers.” In making this argument, however, AT&T overlooks the fact that the price discrimination must first be “unjust or unreasonable.” 47 U.S.C. § 202(a) states, in relevant part, “It shall be unlawful for any common carrier to make any unjust or unreasonable discrimination in charges, practices ... or services for or in connection with like communication service . . . .” (Emphasis added.) Section 202 has traditionally been used by companies in filing complaints with the FCC to allege discriminatory practices by carriers charging different rates for like services or used by the FCC in rejecting tariff filings that attempted to charge different prices for like services. Courts have used a three-part test in determining whether a carrier is discriminating in violation of Section 202(a): (1) whether the services are “like”; (2) if so, whether there is a price difference between them; and (3) if there is such a difference, whether that difference is unreasonable. The significant inquiry is whether two services are “like.” In making this determination, courts use an FCC-developed test known as the “functional equivalency test.” Under this test, the focus of the inquiry centers on whether the services in question are “different in any material functional respect.” AT&T relies on two authorities for its argument, but both are “filed rate” doctrine cases and thus offer no significant support. Accordingly, because Appellants do not challenge a practice requiring technical and expert evaluation by the FCC, and because Section 202 does not apply, we conclude the matter need not be referred to the FCC under the doctrine of “primary jurisdiction.” SUMMARY AND CONCLUSIONS The King County Superior Court dismissed Appellants’ complaint concluding the case was controlled by Hardy v. Claircom Communications Group, Inc., and preempted by 47 U.S.C. § 332(c)(3)(A) and the doctrine of “primary jurisdiction.” The ruling in Hardy principally involved the “filed rate” doctrine. AT&T cites “filed rate” doctrine cases in support of its position. In this case, however, AT&T as a commercial mobile radio service provider is specifically exempted from tariff filing requirements and thus those cases are not materially significant. The language of Section 332 itself, contained in the “terms and conditions” clause, limits the preemptive reach of that provision. The savings clause, Section 414, is indicative of the intent of Congress to preserve state law claims for billing or advertising which do not attack market entry or rates charged by commercial mobile radio service (CMRS) providers. The United States Supreme Court in Nader v. Allegheny Airlines concluded a challenge to a practice that is not governed by a tariff filing does not implicate the “conflict” inherent in contesting a practice or rate expressly regulated by an agency and that any impact on rates is “merely incidental.” A court may award damages without it constituting rate making. The doctrine of “primary jurisdiction” requires that a court refer issues within an agency’s special expertise to the appropriate agency for an initial determination. Because Appellants’ claims do not challenge the rates charged by AT&T nor any other technical practice requiring Federal Communications Commission (FCC) expertise, the matter falls within the conventional competence of the courts without the need for referral to the FCC. We reverse the judgment of the King County Superior Court which dismissed Appellants’ class action complaint on a CR 12(b)(6) motion based upon federal preemption of state law claims under 47 U.S.C. § 332(c)(3)(A), the doctrine of “primary jurisdiction” and the Court of Appeals decision in Hardy v. Claircom Communications Group, Inc. Durham, C.J., and Dolliver, Guy, Johnson, Madsen, Alexander, Talmadge, and Sanders, JJ., concur. Br. of Appellants at 3. Clerk’s Papers at 7, 155, 158. Respondents note that AT&T Wireless itself does not hold any cellular licenses, but instead provides cellular telephone service through direct and indirect ownership interests in cellular license holders. Id. at 158. As of 1996, cellular service was in existence for over 13 years, growing at the rate of 50 percent per year. John W. Berresford, Mergers in Mobile Telecommunications Services: A Primer on the Analysis of Their Competitive Effects, 48 Fed. Comm. L.J. 247, 256 (1996). Respondents AT&T and McCaw Cellular, are collectively referred to in this opinion as AT&T. Clerk’s Papers at 156. Id. at 8. Long distance carriers have historically used full minute billing. In a similar class action full minute billing case, the United States Court of Appeals for the District of Columbia recently affirmed dismissal of fraud, negligent misrepresentation, and false advertising claims, holding that no reasonable customer of the long distance telephone service provider could actually have been misled by the standard and traditional practice of billing in whole minute increments. Alicke v. MCI Communications Corp., 111 F.3d 909, 912 (D.C. Cir. 1997). Clerk’s Papers at 156. Id. Id. Id. Id. Id. Appellants no longer dispute the breach of contract claim on appeal. Br. of Appellants at 1. Clerk’s Papers at 164-65 Id. at 156-57, 166-67. Id. at 26. Id. at 9. Id. at 23. 86 Wn. App. 488, 937 P.2d 1128 (1997). Order of Dismissal. Clerk’s Papers at 279. Br. of Appellants at 6. Id. at 29-30. Hoffer v. State, 110 Wn.2d 415, 420, 755 P.2d 781 (1988), aff’d, 113 Wn.2d 148, 776 P.2d 963 (1989); Bravo v. Dolsen Cos., 125 Wn.2d 745, 750, 888 P.2d 147 (1995). Cutler v. Philips Petroleum Co., 124 Wn.2d 749, 755, 881 P.2d 216 (1994), cert. denied, 515 U.S. 1169, 115 S. Ct. 2634, 132 L. Ed. 2d 873 (1995). Hoffer, 110 Wn.2d at 420 (quoting 5 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1357, at 604 (1969)); Orwick v. City of Seattle, 103 Wn.2d 249, 254, 692 P.2d 793 (1984). 86 Wn. App. 488, 937 P.2d 1128 (1997). Order of Dismissal. Clerk’s Papers at 279. Br. of Appellants at 23. Br. of Resp’ts at 6-7. Hardy, 86 Wn. App. at 489-91. Id. at 490. Id. Id. Id. See Wegoland Ltd. v. NYNEX Corp., 806 F. Supp. 1112 (S.D.N.Y. 1992) aff'd, 27 F.3d 17 (2d Cir. 1994) for a comprehensive history of the doctrine. «Tariff ’ is defined as “Schedules of rates and regulations filed by common carriers.” 47 C.F.R. § 61.3(h) (1997). Courts commonly use “filed rate” to refer to a tariff. Wegoland, Ltd. v. NYNEX Corp., 27 F.3d 17, 18 (2d Cir. 1994). Id. Arkansas Louisiana Gas Co. v. Hall, 453 U.S. 571, 577-78, 101 S. Ct 2925, 2930, 69 L. Ed. 2d 856 (1981). Maislin Indus., U.S., Inc. v. Primary Steel, Inc., 497 U.S. 116, 126, 110 S. Ct 2759, 2766, 111 L. Ed. 2d 94 (1990). Kansas City S. Ry. v. Carl, 227 U.S. 639, 653, 33 S. Ct. 391, 395, 57 L. Ed. 683 (1913) (“Neither the intentional nor accidental misstatement of the applicable published rate will bind the carrier or shipper”); See also Marco Supply Co. v. AT&T Communications, Inc., 875 F.2d 434 (4th Cir. 1989) (doctrine precludes claim of price misrepresentation); Taffet v. Southern Co., 967 F.2d 1483 (11th Cir. 1992) (en banc) (allegedly overcharged or defrauded customers suffered no cognizable injury because of filed rate); Southwestern Bell Tel. Co. v. Metro-Link Telecom, Inc. , 919 S.W.2d 687 (Tex. App. 1996) (doctrine bars action for various allegedly anticompetitive practices committed by long distance provider). 938 F. Supp. 1158, 1164 (S.D.N.Y. 1996), aff'd, 138 F.3d 46 (2d Cir. 1998). Id. Id. at 1170. Id. at 1172. Marcus v. AT&T Corp., 138 F.3d 46 (2d Cir. 1998). See Wegoland, Ltd. v. NYNEX Corp., 27 F.3d 17 (2d Cir. 1994); Cahnmann v. Sprint Corp., 961 F. Supp. 1229 (N.D. Ill. 1997) aff’d, 133 F.3d 484 (1998); Porr v. NYNEX Corp., 230 A.D.2d 564, 660 N.Y.S.2d 440 (1997). Respondent called the Court’s attention to a recent United States Supreme Court decision, American Tel. & Tel. Co. v. Central Office Tel., Inc., 524 U.S. 214, 118 S. Ct. 1956, 141 L. Ed. 2d 222 (1998), which reversed a ruling of the United States Court of Appeals for the Ninth Circuit. The Ninth Circuit had affirmed a magistrate judge’s award of damages on state law claims'despite the existence of a filed tariff, stating “[b]ecause this case does not involve rates or rate-setting, but rather involves the provisioning of services and billing under several contracts, the filed rate doctrine does not apply.” Central Office Tel., Inc. v. American Tel. & Tel. Co., 108 F.3d 981, 990 (9th Cir. 1997). In reversing the Ninth Circuit, the Supreme Court reasoned that “Hates ... do not exist in isolation . . . [but] have meaning only when one knows the services to which they are attached.” Accordingly, the Court ruled the fact services and billing are involved instead of rates or ratesetting does not make the filed rate doctrine inapplicable. American Tel. & Tel. Co., 524 U.S. 223. 47 U.S.C. § 203(a). 47 C.F.R. § 101.3 (1997). Section 332 of the FCA which governs “mobile services” construes cellular telephone service providers as common carriers, and thus companies providing cellular services are subject to many of the same regulations as long distance telephone service providers. 47 U.S.C. § 332(c)(1)(A). For example, cellular telephone service providers must furnish service to all customers upon reasonable request and may not charge rates or engage in practices that are unjust or unreasonable. 47 U.S.C. §§ 201, 202. However, cellular telephone service providers and other similar mobile entities, commonly referred to as “Commercial Mobile Radio Service” (CMRS) providers, are specifically exempted from complying with Section 203 (section requiring tariff filing). 47 C.F.R. § 20.15(a), (c) (1997); see 47 C.F.R. § 20.3 (1997) for a definition of CMRS and § 20.9(a), for a listing of the 13 mobile services currently considered by the FCC to be CMRS providers. Also, in an exhaustive FCC order implementing various provisions of the FCA’s 1993 amendments, the FCC concluded that sufficient competition in the cellular marketplace obviates any need for conventional regulation and decided to “forbear from imposing any tariff filing obligations upon CMRS providers.” Second Report and Order, In the Matter of Implementing of Sections 3(n) and 332 of the Communications Act Regulatory Treatment of Mobile Services, 9 FCC Rec. 1411, 1418 and 1478 (1994). 47 C.F.R. § 20.15(a), (c). Arkansas Louisiana Gas Co. v. Hall, 453 U.S. 571, 577-78, 101 S. Ct. 2925, 2930, 69 L. Ed. 2d 856 (1981). Br. of Resp’ts at 16-17. Hardy, 86 Wn. App. at 493. Air-to-ground radio mobile service providers are subject to greater regulatory control than other CMRS providers, and thus are required to file tariffs with the FCC. Id. at 495-96. See Omnibus Budget Reconciliation Act of 1993, Pub. L. No. 103-66, Title VI, § 6002, 107 Stat. 312, 387-97 (1993). Second Report and Order, 9 FCC Rec. at 1421. U.S. Const. art. VI, cl. 2; Wisconsin Pub. Intervenor v. Mortier, 501 U.S. 597, 604, 111 S. Ct. 2476, 2481, 115 L. Ed. 2d 532 (1991). Cipollone v. Liggett Group, Inc., 505 U.S. 504, 516, 112 S. Ct. 2608, 2617, 120 L. Ed. 2d 407 (1992). Id. Id. at 517. Br. of Appellants at 6. See 47 U.S.C. § 332(c)(3)(A). Br. of Appellants at 10. H.R. Rep. No. 103-111, 103d Congress, 1st Sess. 211, 261, reprinted in 1993 U.S.C.A.A.N. 378, 588. DeCastro v. AWACS, Inc., 935 F. Supp. 541, 552 (D.N.J. 1996); see also Mountain Solutions, Inc. v. State Corp. Comm’n, 966 F. Supp. 1043, 1048 (D. Kan. 1997). Br. of Appellants at 7. See 47 U.S.C. § 414. Bennett v. Alltel Mobile Communications of Ala., Inc., No. 96-D-232-N, slip op. at 11 (M.D. Ala. 1996); Weinberg v. Sprint Corp., 165 F.R.D. 431, 439 (D.N.J. 1996); Sanderson v. AWACS, Inc., 958 F. Supp. 947, 956-58 (D. Del. 1997); DeCastro, 935 F. Supp. at 551. Br. of Resp’ts at 22-27. “Complete preemption” is a related but different procedural doctrine than ordinary preemption and is invoked to determine whether a state law claim should be moved to federal court or whether the claims in federal court should be remanded to state court. Metropolitan Life Ins. Co. v. Taylor, 481 U.S. 58, 63, 107 S. Ct. 1542, 1546, 95 L. Ed. 2d 55 (1987). This doctrine provides that, in limited situations, ordinary common law complaints can be converted into federal claims when the preemptive force of a federal statue is sweeping and extraordinary. Boyle v. MTV Networks, Inc., 766 F. Supp. 809, 814-15 (N.D. Cal. 1991). The United States Supreme Court has stressed the limited scope of this doctrine, finding complete preemption in only two instances: under Section 301 of the Labor Management Relations Act and under Section 502(a) of the Employee Retirement Income Security Act of 1974. DeCastro, 935 F. Supp. at 549. Bennett, No. 96-D-232-N at 14; Sanderson, 958 F. Supp. at 956-58; DeCastro, 935 F. Supp. at 554-55. Congress could have, if it desired, completely preempted state law by stating that Section 332(c)(3)(A) would preempt all state laws that related to the rates charged, instead of providing for preemption only where state law regulates “the entry of or the rates charged” by CMRS providers. Compare ERISA’s broader preemption clause which states that the law “shall supersede any and all State laws insofar as they may now or hereafter relate to any employee benefit plan . . . .” 29 U.S.C. § 1144(a). Br. of Resp’ts at 6. Br. of Appellants at 5. Rogers v. Westel-Indianapolis Co., No. 49D03-9602-CP-0295 (Ind. Super. Ct. July 1, 1996) (superior court dismissed class action concluding it did not have jurisdiction because the remedy requested by plaintiffs would require a change of rates and should therefore be heard by the FCC or a federal court); Simons v. GTE Mobilnet, No. H-95-5169 (S.D. Tex. April 11, 1996) (court dismissed case as preempted by the FCA where plaintiffs challenged the reasonableness of early termination fees in cellular service contracts); Powers v. Airtouch Cellular, No. N71816 (San Diego County Super. Ct. Cal. Oct. 6, 1997) (case dismissed because although plaintiffs alleged suit was based on defendant’s alleged failure to disclose “teardown charges,” the real focus was on the legality or reasonableness of those charges.) Rogers, at 1-2. Br. of Resp’ts at 19. Powers, at 1. In re Long Distance Telecomm’s Litig., 831 F.2d 627 (6th Cir. 1987) (in plaintiffs fraud claims arising from defendant’s alleged failure to disclose its practice of charging long distance customers for uncompleted calls, ring time and holding time, court held the state law claims were not preempted because they did not conflict with the FCA and were within the conventional experience of the courts); Bruss Co. v. Allnet Communication Servs., Inc., 606 F. Supp. 401 (N.D. Ill. 1985) (court denied motion to dismiss claims for fraud and unfair trade practices involving alleged overcharges for phone services); American Inmate Phone Sys., Inc. v. US Sprint Communications Co., 787 F. Supp. 852 (N.D. Ill. 1992); Weinberg v. Sprint Corp., 165 F.R.D. 431 (D.N.J. 1996). 112 Ill. 2d 428, 493 N.E.2d 1045, 98 Ill. Dec. 24, cert. denied, 479 U.S. 949, 107 S. Ct. 434, 93 L. Ed. 2d 384 (1986). Kellerman, 493 N.E.2d at 1047-48. Id. at 1051. 935 F. Supp. 541 (D.N.J. 1996). Id. at 545. Id. at 550. Kellerman, 493 N.E.2d at 1051; DeCastro, at 554. In re Operator Servs. Providers, 6 FCC Rec. 4475, 4477 (1991); see also In re Richman Bros. Records, Inc. v. U.S. Sprint Comm. Co., 10 FCC Rec. 13639, 13641 (1995) (section 414 preserves claims against carriers as against other corporations, such as liability for misleading advertising). Arkansas Louisiana Gas Co. v. Hall, 453 U.S. 571, 578-79, 101 S. Ct. 2925, 2931, 69 L. Ed. 2d 856 (1981) (damage actions are disguised retroactive rate adjustments and thus barred by “filed rate” doctrine); Chicago & N.W. Transp. Co. v. Kalo Brick & Tile Co., 450 U.S. 311, 323, 101 S. Ct. 1124, 1133, 67 L. Ed. 2d 258 (1981) (state court action, dismissed where Interstate Commerce Commission’s authority under the Interstate Commerce Act to regulate abandonments is exclusive and plenary); Wegoland, Ltd. v. NYNEX Corp., 806 F. Supp. 1112, 1121 (S.D.N.Y. 1992) (damages award would require a court to determine a reasonable rate), aff’d, 27 F.3d 17 (2d Cir. 1994); Weinberg v. Sprint Corp., No. BER-L12073-95 (N.J. Sup. Ct. 1996) (a court’s calculation of prorated rate for calls consisting of less than one minute amounts to a statement that phone companies should charge subscribers by the second in direct conflict with FCC determinations that rounding up is legitimate). 86 Wn. App. 488, 495, 937 P.2d 1128 (1997). Id. at 496. Id. Id. at 495. Id. 426 U.S. 290, 96 S. Ct. 1978, 48 L. Ed. 2d 643 (1976). Nader, 426 U.S. at 292-94. Id. at 294-95. Id. 295-97. Texas & Pac. Ry. v Abilene Cotton Oil Co., 204 U.S. 426, 27 S. Ct. 350, 51 L. Ed. 553 (1907). Nader, 426 U.S. at 298. Nader, at 298-99 (discussing Abilene). Id. at 299. Id. Id. Id. Id. at 300. Id. Id. at 305. 47 C.F.R. § 20.15(a), (c). Nader, 426 U.S. at 299. See also Bennett v. Alltel Mobile Communications of Ala., Inc., No. 96-D-232-N, slip op. at 6 (M.D. Ala. 1996). The conclusion that Appellants’ claims are not preempted by Section 332 is limited to that question and does not address the merits of the case. Order of Dismissal. Clerk’s Papers at 279. Vogt v. Seattle-First Nat’l Bank, 117 Wn.2d 541, 554, 817 P.2d 1364 (1991); United States v. Western Pac. R.R., 352 U.S. 59, 63-64, 77 S. Ct. 161, 165, 1 L. Ed. 2d 126 (1956). In re Real Estate Brokerage Antitrust Litig., 95 Wn.2d 297, 302-03, 622 P.2d 1185 (1980). Smith v. Spring Communications Co., No. 96-2067 (N.D. Calif. 1996); AT&T v. IMR Capital Corp., 888 F. Supp. 221, 224 (D. Mass. 1995); Porr v. NYNEX Corp., 230 A.D.2d 564, 660 N.Y.S.2d 440 (1997). See also Kaplan v. ITT-U.S. Transmission Sys., Inc., 589 F. Supp. 729 (E.D.N.Y. 1984), which supports AT&T’s position. The plaintiff in that case brought suit claiming nondisclosure of charges for unanswered telephone calls. The United States District Court dismissed the case on primary jurisdiction grounds, stating that although “the plaintiff in this case is not challenging the reasonableness of a rate or tariff directly, he is challenging the reasonableness of a particular practice—defendant’s nondisclosure policy . . . .” Kaplan, 589 F. Supp. 732-33. National Communications Ass’n v. AT&T Co., 46 F.3d 220 (2d Cir. 1995); Kellerman v. MCI Telecomm’s Corp., 134 Ill. App. 3d 71, 479 N.E.2d 1057, 89 Ill. Dec. 51 (1985), aff'd, 112 Ill.2d 428, 493 N.E.2d 1045, 98 Ill. Dec. 24, cert. denied, 479 U.S. 949 (1986); Pace Membership Warehouse, Inc. v. US Sprint Communications Co., No. 90-F-2121, 1991 U.S. Dist. LEXIS 19788 (D. Colo. Feb. 8, 1991); Source Assocs., Inc. v. MCI Telecomm’s Corp., No. CIVA.88-2324-S, 1989 WL 134580 (D. Kan. Oct. 6, 1989); Redding v. MCI Telecomm’s Corp., No. C-86-5498CAL, 1987 U.S. Dist. LEXIS 16073 (N.D. Cal. Sept. 29, 1987). Nader, 426 U.S. at 292-95, 304-05. Id. at 305-06. See Second Report and Order, 9 FCC Rec. at 1413, 1418, 1478 (although there is congressional intent to create regulatory symmetry among CMRS providers sufficient competition in the cellular marketplace obviates any need for conventional regulation and thus CMRS providers are exempt from tariff filing requirements). Br. of Resp’ts at 40-41. 47 U.S.C. § 202(a). American Broad. Co. v. F.C.C., 663 F.2d 133 (D.C. Cir. 1980); Ad Hoc Telecomm’s Users Comm. v. F.C.C., 680 F.2d 790 (D.C. Cir. 1982); MCI Telecomm’s Corp. v. F.C.C., 917 F.2d 30 (D.C. Cir. 1990). MCI Telecomm’s Corp., 917 F.2d at 39; Competitive Telecomm’s Ass’n v. F.C.C., 998 F.2d 1058, 1061, 302 U.S. App. D.C. 423 (D.C. Cir. 1993); American Message Ctrs. v. F.C.C., 50 F.3d 35, 40 (D.C. Cir. 1995). American Broad. Co., 663 F.2d at 138; Ad Hoc Telecomm’s Users Comm., 680 F.2d at 795; MCI Telecomm’s Corp., 917 F.2d at 39. American Broad. Co., 663 F.2d at 138 (quoting American Trucking Ass’n v. F.C.C., 377 F.2d 121, 127 (D.C. Cir. 1966), cert. denied, 386 U.S. 943, 87 S. Ct. 973, 17 L. Ed. 2d 874 (1967)). Gelb v. AT&T Co., 813 F. Supp. 1022, 1029-31 (S.D.N.Y. 1993); Marcus v. AT&T Corp., 938 F. Supp. 1158, 1171 (S.D.N.Y. 1996), aff’d, 138 F.3d 46 (2d Cir. 1998); see also Day v. AT&T Corp., 63 Cal. App. 4th 325, 74 Cal. Rptr. 2d 55 (1998) (injunctive relief is permissible but “filed rate” doctrine bars any monetary recovery).

Rosellini, J. In 1960, the Attorney General of the State of Washington (the respondent John J. O’Connell) approached officers and attorneys of various public utility districts 'and other municipalities throughout the state advising them of the possible implications of federal indictments and prosecutions in price-fixing conspiracies involving the electrical manufacturing industry. He gave his opinion that these public bodies, having purchased electrical equipment, might have civil antitrust causes of action arising from the price-fixing; and an exploration of that possibility was begun. The State and some of these municipalities joined together in an organization calling itself the “Washington Utilities Antitrust Group” (known as WUAG). A steering committee was selected from among WUAG members to coordinate the litigation, and officers were elected. A litigation fund was established, to be administered by the steering committee. This organization functioned through both the investigative stage and the period of litigation of the antitrust suits which were subsequently instituted. The membership, the officers, and the composition of the steering committee varied as municipalities dropped out or were added. O’Connell advised the attorneys and officers of the municipalities that he could not represent them in his official capacity and that legislative authorization should be obtained if they wished him to do so. A bill was introduced in the legislature for this purpose in 1961, designated Senate Bill 272; however, whether for lack of support on the part of the municipalities or because the legislature considered it inappropriate, it failed to pass. Nevertheless, with the acquiescence of the municipalities, O’Connell assumed the role of leader and coordinator of the antitrust litigation. The investigative phase continued through 1961. During this period some WUAG members decided not to continue because they felt there was no cause of action, or no substantial damage, or the possibility of recovery was too risky to justify the expense. Other members of WUAG decided that litigation should be pursued, but disagreed on the manner in which it should be conducted. Thus, Snohomish County PUD withdrew from WUAG and retained its own local counsel, Edward Novak, on a fee agreement which provided for hourly compensation and a 20 percent contingent fee with a limitation of $250,000 and 10 percent thereafter. Novak had been one of the original members of the WUAG steering committee. The City of Centralia also dropped out of WUAG and retained Novak on a similar fee agreement. The City of Tacoma discussed retaining private counsel in Seattle to conduct the litigation, but then decided to passively conduct the litigation through the city attorney. The remainder of WUAG, now consisting of the State and only five municipalities, agreed that a lawyer experienced in antitrust litigation should be retained. It was agreed that representatives of the Attorney General’s office, acting on behalf of WUAG and its respective members, should seek an “antitrust lawyer” to act as counsel for the members. Such lawyers in New York, Washington, D.C., Chicago, Philadelphia and San Francisco, including the respondent Joseph L. Alioto, were contacted. Alioto was first contacted in the fall of 1961, but no agreement was made at that time to retain him. He was asked for advice, on an hourly fee basis, as to the form and contents of the complaints to be filed in the electrical antitrust litigation, but he was not otherwise retained until August 28, 1962. From January to August 1962, Alioto negotiated with members of the Attorney General’s staff regarding the possible scope of services and compensation. At that time, Alioto was willing to undertake the litigation upon the basis of an hourly fee or a contingent fee of 25 percent of any recovery. After litigation had been pending in Federal District Court for approximately 7 months, WUAG members decided that they should hire Alioto. A letter agreement dated August 28, 1962, was drafted and was submitted by O’Connell to Alioto. It provided that Alioto would represent the six entities named therein and included the proviso that the City of Tacoma might later obtain his legal services upon certain conditions. The six parties to this agreement were the State of Washington; the City of Seattle; Grays Harbor County PUD No. 1; Clark County PUD No. 1; Grant County PUD No. 2, and Benton County PUD No. 1. The agreement provided that Alioto would represent the named plaintiffs and that his compensation would be the amount awarded by the court in any judgment, or a contingent fee of 15 percent of any amounts recovered by settlement, each with a $l-million ceiling. This letter, submitted over the signature of John J. O’Connell, directed Alioto as follows: This work will not be delegated by you to any associate, without my consent. Nor shall there be any association of other attorneys, nor any substitution of attorneys, without my consent. . . . You shall have full authority to carry out this litigation and be directly responsible to me personally. You shall consult with me periodically on all major decisions and policy matters. Any settlement with or dismissal of any defendants requires not only my consent, but that of the several participants in the group. The agreement further provided that any of the parties had the right to request a determination by the Federal District Court as to the reasonableness of Alioto’s fees on any settlement. This procedure was never utilized. Copies of this agreement signed by O’Connell and Alioto were sent to the members of WUAG. Alioto represented the six clients pursuant to the terms of the August 28, 1962, fee agreement. However, additional municipalities requested his services in the antitrust litigation. These requests resulted in a variety of arrangements for association with WUAG and for attorneys’ fees. The Port of Grays Harbor agreed that it would join WUAG but would not be responsible for the payment of any fee to Alioto if settlements were accomplished within a certain period of time. The Clallam County PUD retained Alioto on a 15 percent contingent fee without the original $l-million limitation. The City of Port Angeles and Klickitat and Ska-mania County PUDs joined WUAG and agreed to pay a 15 percent contingent fee to Alioto. The respondent Faler, a young lawyer who had experience in the antitrust field, had been hired as an Assistant Attorney General in 1961 and soon was devoting most of his time to work in the antitrust litigation on behalf of the State and the municipalities. In addition to his state salary, he was paid a salary of $400 per month by Grant County PUD. He resigned from the Attorney General’s staff in the spring of 1965 and entered private practice but was retained by the State as a Special Assistant Attorney General, and was also paid on an hourly basis out of the litigation fund raised by the municipalities. He continued to devote most of his time to the development of these lawsuits. In 1965, when, after 4 years of pending litigation, Snohomish County was not able to satisfactorily prosecute its suits through its own local counsel, Novak contacted Faler and requested that he arrange for Alioto to be retained by the Snohomish County PUD. This was accomplished in 1965, with compensation to be based on 25 percent of any recovery in excess of the then existing offers. Snohomish County PUD did not rejoin WUAG. In 1965 Tacoma formally rejoined WUAG by submitting its designated share of costs. In 1964 Grant County PUD asserted a claim for damages resulting from the purchase of generators installed in the Wanapum Dam project. As a consequence, Alioto was required to prepare and prosecute a trial against General Electric which was not originally contemplated. This trial resulted in a settlement of $3.5 million for Grant County PUD. This settlement was in addition to $4.75 million, separately negotiated with General Electric for the other appellants. In May 1963 generators purchased by the City of Seattle for the Ross Dam project at a cost of $6.5 million were added to the litigation. Claims not originally contemplated, covering damages resulting from purchases of voltage regulators by most of the appellants, were added in 1963. From the inception of the antitrust litigation through the year 1964, many of the appellants’ representatives had been reluctant to pursue the cases and had favored acceptance of some of the initial settlement offers. Alioto had recommended to O’Connell that these offers be rejected. O’Connell in turn successfully prevailed upon local counsel or the parties to concur in Alioto’s recommendation. The result was that enormously increased settlements were obtained. For example, in February 1963, Westinghouse Corporation had offered $76,000 to Seattle, and local officials had thought the offer acceptable. In the spring of 1965, Alioto negotiated a settlement from which the City of Seattle received a net recovery of $1.5 million from Westinghouse Corporation, an increase of more than 2,000 percent. The first settlement made was with the Westinghouse Corporation, and it resulted in a recovery of $3.25 million on behalf of all the appellants. This stimulated a much livelier interest in the antitrust suits and a desire that they be given priority over other antitrust actions being litigated by Alioto on behalf of other clients. Alioto was then preparing a trial which had not been contemplated in August 1962, when the fee agreement was signed. He had negotiated substantial settlements on products which had not originally been within his agreement. He was by that time representing the City of Tacoma and six plaintiffs who had not been involved in the suits when the original fee agreement had been signed. He was being asked to afford the WUAG cases priority treatment. Alioto then commenced the trial on behalf of Grant County PUD against General Electric Company for dam ages resulting from the purchase of the Wanapum Dam hydroelectric generators. This trial resulted in a settlement of $3.5 million, which, combined with prior settlements negotiated by Alioto, resulted in an attorney’s fee in excess of $1 million, based upon a 15 percent contingency. At this time there remained pending numerous cases involving many different products and approximately 24 different defendant manufacturers. During the course of the trial, having consulted with Darrell Ries, an officer of WUAG and attorney for Grant County PUD (whose claims were among the largest being asserted), and having obtained his apparent approval, O’Connell determined that the Alioto fee agreement should be changed. Prior to this determination, George Shuster, a Grant County PUD Commissioner, had also expressed the view that something should be done about the fee ceiling. By letter dated May 4, 1965, over the signatures of O’Connell and Alioto, the August 28, 1962, agreement was modified by eliminating the limitation on fees and by Alioto’s agreement to assign priority to the remaining cases. This modification agreement had been drafted, executed, and submitted by O’Connell in the same manner as had the original agreement. However, it was not sent to the various members of WUAG. Alioto, aided by O’Connell and Faler and other attorneys whom he had hired, obtained priority status for the setting of trial dates for the appellants’ cases, as a result of which settlement negotiations were accelerated. In 1966 Alioto was advised by O’Connell that Seattle and Tacoma were asserting that they had not been advised of the fee modification and were contending that an adjustment should be made in the fees, notwithstanding that representatives of WUAG had concurred in the modification. Subsequently, this controversy was compromised and attorneys for Seattle agreed that the 15 percent fee would be paid on all future recoveries. A similar compromise was made with Tacoma. In March 1966, newspapers throughout the state reported the total settlements made to that date and the fact that Alioto had been paid fees on these cases in excess of a million dollars. These news articles were read by officers and attorneys for the various municipalities and were filed in their records. In April 1966, officials of Grant County PUD publicly acknowledged payment of a 15 percent fee on all recoveries and praised the unexpectedly favorable results obtained in the litigation. The total settlements effected exceeded $16 million. As each antitrust suit was settled, the parties to the complaint passed formal resolutions approving the amount of the settlement. The interest of the State of Washington in the total settlements recovered amounted to approximately 1.53 percent. Alioto divided his fees, which he withheld when settlement payments were received, among the lawyers who had assisted him in the litigation. These included the respondents O’Connell and Faler, as well as lawyers in his own office. The division of fees was based upon Alioto’s personal determination of the value of such services after they were performed. The municipal members of WUAG were not told of the fact that the fees were shared by Alioto with other attorneys. This action was brought to compel the forfeiture of all of the legal fees paid to Alioto, including that portion which he paid to O’Connell, Faler and other attorneys. In essence, the theories of the appellants material to this appeal were that the respondent Alioto was required to forfeit his fees because he had conspired with the other respondents to remove the ceiling of $1 million which had originally been placed on those fees, and to conceal that fact from the appellants; that the respondent Alioto had no right to share his fees with the respondents O’Connell and Faler and that the latter two were entitled to receive no compensation other than their state salaries and the salary paid by Grant County to Faler while he was an Assistant Attorney General; and that they had a right to compel forfeiture under RCW 42.20.010 (the “conflict of interest” statute) and because of an alleged breach of fiduciary duties in failing to advise the appellants of the removal of the fee ceiling and sharing of the fees. The respondents denied that they had engaged in any conspiracy to conceal the fact of the removal of the ceiling on the fees to be paid to respondent Alioto, that there had been a breach of the conflict of interest statute, and that Alioto was not entitled to share his fees with O’Connell and Faler. The respondents denied that they had any affirmative duty to disclose the fact or the amount of those fees to the appellants, and further denied that they had breached any fiduciary duty to the appellants. Alioto alleged that he had the right to rely upon the authority of O’Connell to contract with him regarding representation of the appellants in the antitrust litigation and that the agreement had been ratified by the appellants. Various affirmative defenses, including laches, waiver, estoppel and the ban of the statute of limitations, were alleged. The respondents Alioto and Faler also set up counterclaims for the value of their services based upon quantum meruit. During the trial these counterclaims were dismissed on motion of the appellants. The record is obscure as to the reason for the dismissal but supports an inference that it was done upon the appellants’ representation that they were not claiming to have been damaged by any of the acts of the respondents but rather were relying upon a right to compel forfeiture of fees admittedly earned. The record shows that the appellants stipulated that the total fees paid were reasonable, and the jury was so instructed. The pleadings were lengthy and contained many allegations of fact tending to support the various contentions of the parties. We believe this statement of their substance is sufficient to set the scene for a discussion of the assignments of error. Trial of the action commenced on September 20, 1971, and the jury returned its unanimous verdict in favor of all the respondents on March 26, 1972. Motions for judgment notwithstanding the verdict or in the alternative a new trial were denied. The appellants assign error to a number of instructions and parts of instructions and to the refusal of certain instructions which they requested. The latter were not included in the statement of facts which was originally filed with this court, consisting of 87 volumes containing 12,571 pages. Alioto pointed out in his brief that these assignments of error were not properly before the court, since the appellants had failed to comply with the' requirement of Rule on Appeal 1-34(9), that whenever any error is predicated upon a ruling relative to an instruction given or proposed, that instruction must be included in the statement of facts. After the briefs of respondents Alioto and O’Connell were filed, the appellants submitted a supplemental statement of facts containing all of their requested instructions, as well as the instructions given by the court. Alioto moved to strike this statement of facts, which motion was denied, this court being of the opinion that it should pass to the merits the question whether the assignments of error directed to the refusal of certain requested instructions should be considered. In Popovich v. Department of Labor & Indus., 66 Wn.2d 908, 406 P.2d 593 (1965) (followed in Barnes v. Central Wash. Deaconess Hosp., Inc., 5 Wn. App. 13, 485 P.2d 85 (1971), and Taft v. Department of Labor & Indus., 3 Wn. App. 751, 477 P.2d 651 (1970)), we refused to consider instructions not in the statement of facts and held that an attempt to cure the deficiency by filing a supplemental statement of facts after filing of the respondent’s brief came too late. The reasons why we adopted this rule, which is not a new one, are set forth in Porter v. Chicago, M., St. P. & P.R.R., 41 Wn.2d 836, 252 P.2d 306 (1953), and need not be repeated here. In their reply brief, the appellants urge that the Popovich case is not controlling and that King County Republican Cent. Comm. v. Republican State Comm., 79 Wn.2d 202, 207-08, 484 P.2d 387 (1971), governs the disposition of the question presented in this case. There this court reviewed a summary judgment proceeding, even though the record considered by the trial court was belatedly certified. We stated that the rule of the Popovich case, while proper under the circumstances of the case, was not applicable in the type of summary judgment proceeding there under review. We said: The trial court in its judgment recited that there was no material dispute of fact, and the parties in essence agree there is none. Neither was there any diversity of view as to the underlying question of law to be resolved, i.e., the interpretation of RCW 29.42.010. Because of the significant and emergent nature of the matter in dispute the normal time periods for perfecting an appeal were substantially shortened and the appellate process materially accelerated. Except for the interposition of respondent’s motion, all parties, despite the abbreviated time factors, addressed ample and skillful written and oral arguments to the pertinent legal question involved. And the trial judge’s supplemental certificate filed prior to the date set for oral argument, verified that the transcript before us represented no more and no less than the precise record considered by the trial court in ruling on the cross motions for summary judgment. Under these circumstances, we find no discernible or practical prejudice flowing to respondent, no unfairness to the trial judge, and no inconvenience to this court as a result of the belated certification of the record. It will be seen that there are significant differences between that case and this. Since it was a summary judgment proceeding, the record in that case consisted of the pleadings, the respective motions for summary judgment and the attached affidavits and documents. No evidence was taken before the trial judge and only a question of law, involving the interpretation of a single statute, was presented. The appellate process was accelerated because of the emergent nature of the matter in dispute. The lawsuit which we have before us in this case is an extremely complicated one, owing to the number of plaintiffs and the variety of theories which they advanced, as well as the volume and complexity of the testimony and the exhibits which were introduced during the trial, which lasted over a period of 6 months. Many legal questions which have not been raised on this appeal were debated before the superior court judges who tried the case. Many instructions were requested and many were given. Thus the record cannot be quickly examined, as in the King County Republican Cent. Comm. case. A further distinction between the King County Republican Cent. Comm. case and this is apparent. That case was processed on an emergency basis. Here, the appellants’ notice of appeal was given May 24, 1972. Their request for an extension of time in which to file the statement of facts was granted, and the court entered an order permitting the proposed statement to be served on April 1, 1973. The appellants were not under the kind of extraordinary pressure, in preparing their briefs and examining the statement of facts, which faced the parties in the case upon which they rely. This is not a case of an emergent nature, as was the case of King County Republican Cent. Comm. v. Republican State Comm., supra. It is simply a dispute between attorneys and clients regarding the right to attorneys’ fees. Thus, none of the considerations which moved this court to waive its rule regarding the certification of the record in the King County Republican Cent. Comm. case are present here. Nevertheless, we have examined the requested instructions to ascertain whether, upon its face, any of them have substantial merit. We do not find that any of them advances a theory, properly applicable to the evidence presented in the case, which was not adequately covered by the instructions given. As the respondents point out, many of the requested instructions would have amounted to comments upon the evidence. Others,' while perhaps correct as abstract statement of law, were not relevant to the appellants’ claim for relief. The court is not required to instruct the jury on abstract legal propositions. Easton v. Chaffee, 16 Wn.2d 183, 132 P.2d 1006 (1943). The supplemental statement of facts contains 170 pages. The reply brief does not correct the deficiency appearing in the appellants’ opening brief. There is still before the court no document pointing out the pages in the statement of facts upon which the instructions, to the refusal of which error is assigned, can be found. Yet the appellants suggest that neither the court nor Alioto — who had to do additional briefing and appear in court, by counsel, to argue his motion — have been inconvenienced by the failure to comply with the published rules of court. We find it difficult to concur in this conclusion. In a case such as this, where the trial court considered many proposed instructions and gave many, where this court is asked to overturn a verdict arrived at by a jury which listened to the testimony for more than 6 months and considered thousands of pages of exhibits, and whose integrity and conscientiousness have not been questioned, it is important that we be meticulous to ascertain that any claimed error was actually brought to the attention of the trial judge and argued intelligibly. It is therefore important that the court be able to consider an instruction refused in the light of the instructions given and with reference to the exceptions taken to the refusal and that it be certain that the designated instruction was actually submitted to the trial judge. In such a case, compliance with our ROA 1-34(9) is particularly important in order that no mistake be made and the verdict not be set aside for an alleged error which was never properly brought to the attention of the trial court. The appellants are represented on this appeal by a large firm of attorneys. It is not unreasonable to expect a firm which is preparing a 100-page brief with approximately 50 pages of appendices, in a case which it deems important, to assign some attorney to examine the Rules on Appeal to make certain that its contentions and arguments are properly presented. We think that if the rule stated in Popovich v. Department of Labor & Indus., 66 Wn.2d 908, 406 P.2d 593 (1965), is to have any force and effect at all, it must be applied in cases such as this one. We conclude, therefore, that the assignments of error directed to the refusal of instructions are not properly before us and need not be dealt with in this opinion. The appellants complain of an instruction which advised the jury that it was legally beyond the authority of the State Attorney General’s office to act as attorney for the non-state plaintiffs. While the appellants do not deny that neither Const. art. 3, § 21, nor- any statute authorized the Attorney General to represent municipal corporations, they maintain that he was not forbidden to act as attorney for cities and public utility districts and that the jury should have been so instructed. This is precisely the position taken by O’Connell — that he was not forbidden to engage in the private practice of law, and the court instructed the jury accordingly. As the appellants agree, all of the municipal corporations involved were authorized by law to employ counsel. They were not forbidden to employ O’Connell. However, they had no right to expect him to act for them in his official capacity. The appellants’ argument is that they thought O’Connell was acting in their behalf in the course of his official duties. The evidence shows that he advised them that he had no such power, and it can be inferred that they knew that the legislature had failed, upon request, to enact a law authorizing him to represent them in his official capacity. The powers of the Attorney General are created and limited not by the common law but by the law enacted by the people, either in their constitutional declarations or through legislative declarations in pursuance of constitutional provisions. State ex rel. Attorney Gen. v. Seattle Gas & Elec. Co., 28 Wash. 488, 70 P. 114 (1902). Accord, State ex rel. Hamilton v. Superior Court, 3 Wn.2d 633, 101 P.2d 588 (1940). The instruction complained of correctly stated the law. Objection is made to an instruction which advised the jury that, although a contract is void if it is entered into by a public officer who has an interest in the transaction, such a contract is not void as to anyone dealing with the public officer or employee who does not have knowledge of the facts and circumstances which constitute the violation of the statute or of any other facts and circumstances which should reasonably alert him to-those facts or circumstances. They insist that such a contract is void as to all parties. The respondents, on the other hand, maintain that the instruction was correct under our holdings in Gantenbein v. Pasco, 71 Wash. 635, 129 P. 374 (1913), and Shaw & Hodgins v. Waldron, 55 Wash. 271, 104 P. 272 (1909). We do not find it necessary to inquire into the propriety of the instruction. The only claims to which the conflict of interest statute (RCW 42.20.010) could apply were those of the State and the only public officers who might have violated it were O’Connell and Faler. Since the jury was instructed that the statute of limitations did not apply to State claims, the jury’s verdict against the State and in favor of O’Connell and Faler necessarily reflects a finding that they accepted no fees from Alioto for their work on behalf of the State of Washington, a finding supported by substantial evidence, and thus had no interest in Alioto’s contract with the State, and consequently that there was no violation of the so-called conflict of interest statute. The appellants assign error to an instruction which advised the jury that the Attorney General and an Assistant Attorney General were permitted under law to engage in the private practice of law so long as they conducted their practice in a manner which would avoid conflict with their official duties. The appellants do not actually question the propriety of this instruction; their objection, rather, is -directed to the court’s refusal of instructions which would have qualified it. As we have heretofore ruled, such instructions are not before us for consideration. The next assignment of error is of a similar nature. It is directed to an instruction that the canons of ethics and the lawyer’s fiduciary duty to his client require him to advise his client of any facts or circumstances which reasonably appear to be important to the client in connection with the matter being handled or in the making of any financial decision or any other important decision which the lawyer does not or reasonably should not have reason to believe the client already knows from some other source; that the duty is one of frankness, openness and candor as to matters which reasonably appear to be important to the client; but that this duty does not require a lawyer to advise his client of matters which the client already knows or which the lawyer reasonably believes the client has already learned or will be advised from some other source, or which are not important enough to the client under the circumstances of the relationship to reasonably call for disclosure, and that a lawyer forfeits his right to compensation if he violates in a substantial way his duty to his client to the detriment of the client or to the private gain of the lawyer. As in the preceding assignment of error, the appellants do not question the correctness of this instruction. They requested .an additional instruction which would have advised the jury that under the circumstances Alioto had a duty to disclose the fact that he was sharing fees with O’Connell and Faler. This requested instruction is likewise not before us for consideration. The court’s instruction upon the duty of disclosure, the correctness of which was not challenged by the appellants, advised the jury in effect that the duty to disclose a particular matter depends upon the facts and circumstances of the case. The respondents introduced evidence tending to show that the appellants manifested no interest in the question of how or whether O’Connell and Faler would be compensated for their services, or what disposition Alioto would make of his fees. Their evidence also tended to show that the fee contract negotiated with Alioto, even after the ceiling had been removed, was so much more advantageous to the appellants than any other option open to them and that the services rendered by O’Connell and Faler were so patently valuable, that it was highly improbable if not inconceivable that the appellants would have raised any objection to the fee sharing, had they been expressly advised of it. When the court instructed the jury that an attorney has a duty to disclose to his clients all facts which are “important to the client,” it was referring to what are usually referred to as material facts, but using language calculated to be more understandable to the layman. A fact is material if its existence or nonexistence is a matter to which a reasonable man would attach importance in determining his choice of action in the transaction in question or the maker of the representation knows that its recipient is likely to regard the fact as important, although a reasonable man would not so regard it. Restatement of Torts § 538 (1938); see also § 551. This concept was embodied in the instruction given. The appellants were unsuccessful in producing evidence which demonstrated to the satisfaction of the jury that the fact that fees were shared had been important or material to them at the time of the transaction. They attempted, however, to fill this evidentiary gap by offering the testimony of two lawyers and a judge who were willing to state that, in their opinion, the respondents had a duty to disclose the fee sharing arrangements. The court refused to admit this testimony and the appellants assign error to its rulings in this regard. Their assignment, however, is unaccompanied by citation of authority or by recognition' of the rules applicable to the admission of expert testimony. They make no showing that there exists a field of expertise which embraces the lawyer’s duty to disclose facts to his client or that the witnesses whose testimony was offered were experts in the area of lawyer-client relationships. Qualifications of expert witnesses are to be determined by the trial court within its sound discretion and rulings on such matters will not be disturbed except for a manifest abuse of discretion. Myers v. Harter, 76 Wn.2d 772, 459 P.2d 25 (1969). No abuse of discretion has been shown here. If the evidence was offered in an attempt to prove the law, it was improper, since the determination of the applicable law is within the province of the trial judge and not that of an expert witness. Valley Land Office, Inc. v. O’Grady, 72 Wn.2d 247, 432 P.2d 850 (1967). If, on the other hand, it was the purpose of the appellants in offering this testimony to place before the jury the witnesses’ evaluation of the evidence in the case, it was likewise properly excluded, for not only were the witnesses not established as experts, but there was no need for such opinion testimony, the matter being one of common knowledge about which inexperienced persons are capable of forming a correct judgment. See Gerberg v. Crosby, 52 Wn.2d 792, 329 P.2d 184 (1958). The appellants suggest that this testimony was necessary to counteract the statements of the respondents O’Connell and Alioto that, in their opinion, they did not have the duty of disclosing the fee sharing arrangement. These opinions were elicited by the appellants’ counsel when the respondents were questioned as adverse witnesses and cannot be relied upon as a basis for a contention that the trial court abused its discretion in refusing to admit the testimony of other members of the profession who held a different opinion. Error is assigned to an instruction which read: Where a lawyer has a client and continues to represent that client after he associates a second lawyer to represent the client as a trial specialist, it is customary and proper for the lawyers to have an understanding between themselves that the original lawyer will be primarily responsible for dealing with the client and the second lawyer will be primarily responsible for handling the litigation. One lawyer may reasonably rely upon the other lawyer unless or until he has knowledge of facts or circumstances which should reasonably alert him to the contrary. These factors do not change the legal duty that every lawyer owes to every client, but they may be taken into account in determining whether or not the legal duty has been fulfilled. It is complained that this instruction is erroneous because it advised the jury that an attorney may delegate his responsibility to comply with the Canons of Professional Ethics. In re Schroeter, 80 Wn.2d 1, 489 P.2d 917 (1971), is cited. We there held that, although practicalities may require an attorney to delegate in good faith mechanical matters and obtain suggestions at times from other attorneys, this in no way relieves him from the personal obligation to comply with the Canons of Professional Ethics. We are unable to perceive that the quoted instruction is open to the construction placed upon it by the appellants. It expressly states that the division of primary responsibilities among lawyers does not change the lawyer’s duty to his client. We are cited to no authority which indicates that this instruction was improper. Error is assigned to the giving of an instruction upon the statute of limitations. The instruction read: Any party other than the State of Washington is permitted to commence a lawsuit only for a certain period of time as specified by statute. If you find that such plaintiffs, or any of them, had knowledge or notice of the facts upon which their claims, or any of their claims, are based at any time prior to January 20, 1967, then on each such claim you shall find for the defendants and against each plaintiff having such knowledge or notice. This instruction does not apply to the State of Washington. The term “knowledge” means actual knowledge of the facts. The term “notice” means, knowledge of facts which, if followed up diligently, would have led to knowledge of the facts on which the claims are based. Anything which is notice enough in reasonable human experience to call for inquiry is deemed notice of facts which such inquiry reasonably would have revealed. If a fiduciary relation existed between the parties so that there was an affirmative duty to disclose information, that is a factor which you may consider in deciding what inquiry a party would be expected to make in reasonable human experience. The plaintiffs have the burden of proving by a preponderance of the evidence that they did not have knowledge or notice of the facts prior to January 20,1967. Several arguments are made under this assignment. It is first contended that no statute of limitations should be applicable, the theory being that the State was required under RCW 43.09.260 to bring this action on behalf of all of the appellants. As we read that act, it authorizes the Attorney General to bring actions against municipal officers — not to represent them in actions against third parties. However, we need not inquire into the merits of this contention, since the fact is that the action was brought by the municipal appellants themselves, as well as by the State, each asserting its claims in its own behalf and not as a representative of others. It is further argued in support of this assignment of error that the instruction was confusing because it did not differentiate between notice of the facts pertaining to the lifting of the fee ceiling and notice of the fee sharing. The instruction given correctly told the jury it was to consider the question whether the appellants had notice or knowledge of the facts upon which their claims were based, with regard to each claim. We do not think the instruction is open to the objection raised. The next objection to the instruction regarding the statute of limitations is that it allowed the jury to speculate upon an issue not supported by evidence. Albin v. National Bank of Commerce, 60 Wn.2d 745, 375 P.2d 487 (1962), is cited, wherein we held that it is prejudicial error to submit an issue to the jury where there is no substantial evidence concerning it. It is the position of the appellants that there was no evidence in the case that any of the appellants knew of the fee sharing prior to late November 1969, well within the statute of limitations. The appellants state that their claims are based in large part on the “illicit” fee sharing and that the instruction must have induced the jury to assume that the court believed there was evidence to show that the appellants knew of such sharing of fees prior to January 1967. There was evidence upon which the jury could find that the appellants knew or should have known of the removal of the ceiling on the fees to be paid the respondent Alioto before 1967. The instruction was proper, therefore, as applied to the claims based on the failure to disclose that change in the agreement. No instruction that the statute of limitations could be considered only in relation to those claims was requested. Error cannot be predicated on the giving of an instruction which correctly states the law applicable to the evidence but does not embody a given qualification or exception, if no limiting instruction was requested by the complaining party. Roumel v. Fude, 62 Wn.2d 397, 383 P.2d 283 (1963), and Goodner v. Chicago, M., St. P. & P. Ry., 61 Wn.2d 12, 377 P.2d 231 (1962). Error is assigned to that portion of the instruction on the statute of limitations which advised the jury that the appellants could not recover on any cause of action if they had knowledge or notice of the facts upon which their claims were based prior to January 20, 1967, and further advised the jury that notice is knowledge of facts which, if followed up diligently, would have led to knowledge of the facts upon which the claims are based. The objection here is that RCW 4.16.080(6), dealing with actions against officers charged with a failure to properly account for public funds, provides that the cause of action shall not be deemed to accrue until discovery by the aggrieved party of the act or acts upon which such liability has arisen or shall arise. The respondents maintain that the word “discovery” refers to actual notice only. Again, this statute could apply only to the claims of the State of Washington, since none of the respondents were officers of any of the municipal corporations, and the jury was instructed that the claims of the State are not subject to the statute of limitations. Any error in the instruction could not have been prejudicial. The next objection advanced against the instruction on the statute of limitations is that it did not differentiate between the three causes of action set out in the appellants’ complaint. It is the theory of the appellants that the 6-year statute of limitations should have applied to their second cause of action because it was based on the letter written by the respondent O’Connell to Alioto on August 28, 1962, on behalf of the appellants, which allegedly constituted a contract between the appellants and Alioto. The trouble with this theory of the appellants is that it does not fit the allegations of the second cause of action. It is therein alleged that respondents Alioto, O’Connell and Faler agreed to the drafting and signing of a letter agreement in May 1965, which was intended to revise the original attorneys’ fee agreement so as to remove the $l-million ceiling. The appellants claimed that they were not consulted about these revisions in the fee agreement and that the change was made without their approval. This cause of action makes no reference to the letter of agreement of August 28, 1962, and does not purport to have its basis in that agreement. Halver v. Welle, 44 Wn.2d 288, 266 P.2d 1053 (1954), relied upon by the appellants, does not support the conclusion that the claim of appellants was one based upon a written contract. In that case the owners of a home overpaid the builder $1,000 and brought an action to seek a refund of the excess payment. We held that the 3-year statute of limitations applied but said had there been an underpayment on an amount due under the written agreement, and had the contractor been suing, the 6-year statute would have applied. The appellants in this action are claiming a right to de mand forfeiture. Their claims are based not on any contract but on an alleged conspiracy, breach of fiduciary duties, and statutory violations. While the validity of the 1962 agreement may perhaps be an essential prerequisite to their right to recover under these theories, this is not an action to enforce that contract or to recover for its breach. The contract might be enforceable insofar as the matters covered by it were concerned, and yet Alioto could still claim a right to recover in quantum meruit for the extra services rendered. See 7 C.J.S. Attorney & Client § 182 (1937); Isham v. Parker, 3 Wash. 755, 29 P. 835 (1892). The appellants’ contention that this is an action based on a written contract cannot be sustained. The appellants suggest that as to O’Connell and Faler, this was an action against former officers and employees of the municipal plaintiffs, and that the statute of limitations does not begin to run against such persons until the expiration of their terms of office. But the record is devoid of any evidence that either of these respondents was an officer or employee of any appellant other than the State of Washington; and as to that appellant, the court advised the jury that the statute of limitations was inapplicable. We find no merit in this contention. Finally, the appellants claim that the 3-year statute is not appropriate because this was an action for an accounting or an action based on a constructive trust. The appellants did not adopt or pursue these theories in the trial court and proposed no instructions embodying them. Failure to present an issue to the trial court precludes its consideration on appeal. Washington Osteopathic Med. Ass’n v. King County Med. Serv. Corp., 78 Wn.2d 577, 478 P.2d 228 (1970). The appellants assign error to the giving of two instructions setting forth the rules of law pertaining to the doctrine of apparent authority of an agent. It is not suggested that the instructions incorrectly stated the law or that they were unsupported by evidence. Rather it is contended that the instructions were inappropriate because a municipal corporation cannot be bound by the acts of its agent which are not expressly authorized by ordinance or resolution. The appellants quote, as conclusive authority for this contention, a statement found at 2A C.J.S. Agency § 158, at 795 (1972): Public agents. The rules as to the apparent authority have no applicability to public agents, whose powers are created by laws, the existence and terms of which those dealing with them are held to know. (Footnote omitted.) Upon turning to the footnote supporting this statement, we find only two cases cited. One of these is Thirst Quenchers of Ohio, Inc. v. Glander, 68 N.E.2d 671 (B.T.A. Ohio 1946). That was an appeal from an order of the State Tax Commissioner denying an application for a tax refund, on the ground that it had not been filed within the time prescribed by law. The taxpayer maintained that an employee of the Tax Commission had assured him that he would supply him with a form upon which to claim the refund to which he was otherwise entitled, that he had relied on this promise and delayed the procuring of a form and filing of his claim until after the expiration of the statutory period. The court held that no officer, employee or other agent of the state or of the Department of Taxation had any authority to waive or extend the statutory limitation of time within which a taxpayer was required to file an application for a refund of taxes. Noting the rule that there can be no estoppel where there is an entire absence of power, that the Tax Commissioner and the Board of Tax Appeals were creatures of statute, having only such powers as were expressly conferred on them or necessarily implied from the powers given, that the right to a refund was required to be exercised strictly in accordance with the statute providing for it, that the examiner had no statutory duty to provide forms, that the taxpayer could easily have obtained his own form by writing to the department, and that the taxpayer had delayed more than 90 days after learning that the examiner would not supply him with a form, the court affirmed the Board of Tax Appeals. In reaching its conclusion, the court cited 2 C.J. 573, where the rule was stated: In the case of officers, the rules relating to apparent authority are not applicable, as the state is bound, only by authority actually fixed in the officer, and his powers are limited and defined by law. The second authority cited in the encyclopedia is Elliott Nat’l Bank v. Western & A.R.R., 70 Tenn. 676 (1879). The transactions involved in that case had arisen out of the ownership and operation of a railroad by the State. The officers of the railroad were held to be state officers, whose duties and authority were prescribed by statute. The superintendent, one of these state officers, who belonged “to the class of public agents like the Governor of the State,” gave notes to the plaintiffs for sums in excess of those allowed by statute, without the approval of the Governor in writing. The court held that the plaintiff could not obtain repayment of the notes, even though there may have been a showing that the notes were issued in accordance with a “customary action” which might estop a private principal, noting that the object of the rule was to protect the public interest against loss from the “ ‘fraud, mistake, rashness, or indiscretion of public agents.’ ” We see no reason to quarrel with the holdings of those cases as applied to their facts. It will be noted that in each case the employee or officer was one whose duties and authority were defined by statute, and in each case the act upon the basis of which estoppel (or apparent authority) was claimed was one which was beyond the statutory authority of the public agent. This court adheres to the rule that officers of municipalities have only such powers and duties as are conferred upon them expressly or by necessary implication in the applicable statutes. Othello v. Harder, 46 Wn.2d 747, 284 P.2d 1099 (1955). It will be observed that if the commas are removed from the sentence quoted from the encyclopedia, it correctly states the holding of the cited cases. In the case before us, there is no claim that there was any statutory limitation upon the authority of O’Connell (who was not an officer of any of these municipalities) to contract with Alioto on behalf of the municipal corporations or any ordinance or resolution in effect which defined or limited his power in that regard. There were in effect resolutions which authorized him to conduct the litigation, in cooperation with the municipal plaintiffs, but these resolutions did not purport to prescribe the methods or procedures to be followed or to place limits on the power to engage special counsel. There is no contention that the first agreement executed by O’Connell and Alioto in 1962 was expressly authorized by ordinance or resolution. Not only was there no statute, resolution or ordinance to which the respondent Alioto could look to find the limits of O’Connell’s power to contract with him, insofar as the appellants have disclosed, but there is none to which the attention of this court has been called. Upon this state of facts, the implied or apparent authority of O’Connell to enter into the two agreements was of a dignity at least equal to that of his express authority. The appellants not only do not question his authority to bind them under the 1962 letter agreement, they insist that the agreement was binding upon Alioto. It would be anomalous indeed to hold that they can affirm (without formal ratification) that agreement which they find most advantageous and at the same time successfully contend that the jury was not entitled to consider the apparent authority with which they had clothed O’Connell when he, using the same form of contract which he had used in the first instance, modified that agreement to provide a larger, but still admittedly reasonable, fee. While we adhere to the rule that a public agent cannot bind his principal when he enters into a contract which is ultra vires, even though the public body for which he acts may have clothed him with such indicia of authority that it would be estopped if it were a private person, we have often found that an implied contract has arisen, where it was entered into by representatives of a public body whose actual authority was defective where the contract was one which it was within the power of the public body to make, and have recognized the right of the contracting party to be paid the reasonable value of his services. Such cases are Edwards v. Renton, 67 Wn.2d 598, 409 P.2d 153, 33 A.L.R.3d 1154 (1965) (installation of traffic signal); Abrams v. Seattle, 173 Wash. 495, 23 P.2d 869 (1933) (construction of light department substation); Jones v. Centralia, 157 Wash. 194, 289 P. 3 (1930) (construction of power plant); O’Connor v. Murray, 152 Wash. 519, 278 P. 176 (1929) (road contract); Besoloff v. Whatcom County, 133 Wash. 109, 233 P. 284 (1925) (road work); Mallory v. Olympia, 83 Wash. 499, 145 P. 627 (1915) (improvement of a slough); Green v. Okanogan County, 60 Wash. 309, 111 P. 226 (1910) (construction of a bridge); Criswell v. Board of Directors, 34 Wash. 420, 75 P. 984 (1904) (construction of school building). See also Kerr v. King County, 42 Wn.2d 845, 259 P.2d 398 (1953); and see Batcheller v. Westport, 39 Wn.2d 338, 235 P.2d 471 (1951), where, upon rescission of an architect’s contract, he was allowed to recover compensation for the reasonable value of his services, which had resulted in a tangible benefit to the county. We have said that the acceptance of services rendered by an attorney may raise an implied promise to pay therefor; and if an attorney renders valuable services, a promise by the one receiving the benefit thereof to pay the reasonable value of such services is presumed unless the circumstances establish that they were intended to be gratuitous. McKevitt v. Golden Age Breweries, Inc., 14 Wn.2d 50, 126 P.2d 1077 (1942). The cases are annotated in 100 A.L.R.2d 1378 (1965). Although we have found no case in this jurisdiction where the doctrine has been invoked or applied in a suit against a municipal corporation, we have, in a case where there was found to be an express contract employing an attorney but no agreement as to fees was included, found an implied contract to pay a reasonable fee. Purvis v. PUD 1, 50 Wn.2d 204, 310 P.2d 233 (1957). While statements have been made in State ex rel. Bain v. Clallam County Bd. of County Comm’rs, 77 Wn.2d 542, 463 P.2d 617 (1970), Stoddard v. King County, 22 Wn.2d 868, 158 P.2d 78 (1945), and Hailey v. King County, 21 Wn.2d 53, 149 P.2d 823, 154 A.L.R. 351 (1944), that the doctrine of implied contract cannot fasten liability upon a municipal corporation for purely personal services, we think an examination of our cases, including those cited in support of that statement, will reveal that the rule is applicable only where the personal services rendered have resulted in no tangible benefit to the municipality. The general rule is to this effect. See 63 C.J.S. Municipal Corporations § 975 (1950); 1A C. Antieau, Municipal Corporation Law § 10.10 (1973); see also 1AC. Antieau, Municipal Corporation Law § 10.05 (1973); 10 E. McQuillin, Municipal Corporations § 29.110 (F. Ellard 3d ed. rev. 1966), and specifically with regard to attorney’s services. 56 Am. Jur. 2d Municipal Corporations § 224 (1971); Edwards v. Kirkwood, 147 Mo. App. 599, 127 S.W. 378 (1910). We cannot perceive that a person who renders services which result in a tangible benefit to a municipal corporation should be denied reasonable compensation, if such compensation is allowed to one who furnishes materials or conveys property to the municipality. We also have recognized that the principles of equitable estoppel can be invoked against a municipality. In Finch v. Matthews, 74 Wn.2d 161, 169-70, 443 P.2d 833 (1968), a quiet title action in which the plaintiffs relied upon a contract whereby they had acquired certain real estate from the City in a procedure which was irregular under the applicable statutes, this court said: It is the general rule that the courts will not apply principles of equitable estoppel against the government or government subdivisions under certain situations. These are well summarized in the text statement found in Annot. 1 A.L.R. 2d, 340-41 (1948). As a general rule the doctrine of estoppel will not be applied against the public, the United States government, or the state governments, where the application of that doctrine would encroach upon the sovereignty of the government and interfere with the proper discharge of governmental duties, and with the functioning of the government, or curtail the exercise of its police power; or where the application of the doctrine would frustrate the purpose of the laws of the United States or thwart its public policy; or where the officials on whose conduct or acts estoppel is sought to be predicated, acted wholly beyond their power and authority, were guilty of illegal or fraudulent acts, or of unauthorized admissions, conduct or statements; or where the public revenues are involved. (Footnotes omitted.) Finding none of these factors, we upheld judgment for the plaintiff, saying at page 175: The doctrine of equitable estoppel will be applied against the state or against a municipality or other political entity when acting in its governmental as well as when acting in its proprietary capacity, when necessary to prevent a manifest injustice and the exercise of its governmental powers will not be impaired thereby. 31 C.J.S. Estoppel § 141 (1964). See also Franklin County v. Carstens, 68 Wash. 176, 122 P. 999 (1912), where the principle of equitable estoppel was applied against a county’s asserting title to land acquired by it in a proprietary capacity at a county tax sale. We have also found, in a case where a property owner was damaged by the activities of a railroad company in carrying out its contract with a county, a city having annexed the property after that contract was entered into, that the city was liable to the property owner, having ratified the contract of the county by acquiescing in its benefits. Ettor v. Tacoma, 77 Wash. 267, 137 P. 820 (1914). This court observed that the case could be decided upon principles of estoppel, as well as those of ratification, but determined that ratification was the most appropriate theory. It will be seen that equitable principles have been applied by this court to contractual relationships of municipalities, irrespective of whether the alleged contract was entered into in pursuit of a governmental or a proprietary function. In support of their contention that the doctrine of apparent authority of an agent is inapplicable where the agent acts for a municipal corporation, the appellants cite the following cases: Arnott v. Spokane, 6 Wash. 442, 33 P. 1063 (1893); Paul v. Seattle, 40 Wash. 294, 82 P. 601 (1905); Hailey v. King County, supra; Stoddard v. King County, supra; State ex rel. Dungan v. Superior Court, 46 Wn.2d 219, 279 P.2d 918 (1955); and State ex rel. Bain v. Clallam County Bd. of County Comm’rs, supra. Jones v. Centralia, 157 Wash. 194, 289 P. 3 (1930), in which Arnott v. Spokane, supra, was cited by the court, was a case in which a plaintiff sought recovery against a city upon a manifestly illegal agreement, one which was unlawful not only because of the manner in which it was made but because it was inherently void as against public policy. Thus the contract in that case was ultra vires and would give rise to no implied contract. Nor could the doctrine of apparent authority be invoked. Paul v. Seattle, supra, was a case brought by a broker to recover commissions on the sale of certain municipal bonds, which he claimed that he had earned. He had not been formally employed by the city, and the latter refused to pay the commissions. It was held by this court that, even though the plaintiff had allegedly performed his part of the alleged agreement, the principles of estoppel, ratification or implied contract were not available to him and he could recover for his services only if the contract was executed in the manner prescribed by law. To the extent that statements found in this case are inconsistent with the subsequent cases which we have previously cited, wherein equitable principles have been held applicable, it has been many times overruled sub silentio. See, for example, Green v. Okanogan County, supra, where Rudkin, C.J., dissenting, pointed out that Arnott v. Spokane, supra, and Paul v. Seattle, supra, were directly opposed to the doctrine announced in the majority opinion in that case. Also, insofar as the opinion discloses, the city realized no tangible benefit from the plaintiff’s alleged services. While the case has been cited as recently as 1970 in State ex rel. Bain v. Clallam County Bd. of County Comm’rs, supra, the strict approach taken there has generally been followed only where specific performance has been sought and the contract is executory. In State ex rel. Bain v. Clallam County Bd. of County Comm’rs, supra, we observed that the rule that a person dealing with a municipal corporation is bound to take notice of the limitations in its power to contract and is also presumed to have knowledge of the power and authority of the individual officer or officers with which he actually negotiates, is especially enforced where the public treasury will be directly affected by some action of the municipality. It is not suggested that the fees paid the respondents out of the settlements effected in anti trust suits arising out of the exercise of proprietary functions, were taken from the public treasury. State ex rel. Dungan v. Superior Court, supra, was a condemnation proceeding. Certain persons who had been city officials maintained that a water and sewer superintendent had promised to locate a pipeline in a manner advantageous to them, when they conveyed certain property to the city. There was no suggestion that they had not been paid for the property. Nevertheless they claimed they had been defrauded. We said that such officials were presumed to know that they could not enter into a contract with the city, through another city official, in regard to a matter in which they had a personal interest. They were also presumed to know that they dealt at their peril when contracting with a city official as an agent of the city without first ascertaining his authority to so contract. It will be seen that that case involved a number of facts which distinguish it from a case such as this one, where a third party has dealt with an agent of a municipality, not a municipal officer, and relying on his apparent authority, has rendered valuable services to the municipalities, resulting in a tangible benefit to each of them. Hailey v. King County, 21 Wn.2d 53, 149 P.2d 823 (1944), was a case in which the plaintiff sought to recover the reasonable value of personal services which he had rendered to King County upon the strength of alleged assurances made by individual members of the Board of County Commissioners that compensation would be made. It was not contended that his services had resulted in any material benefit to the county. We recognized in that case that the doctrine of implied contract has been applied with respect to municipal corporations under circumstances where equity and good conscience have seemed to require it. 2 J. Dillon, Municipal Corporations § 793, p. 1184 (5th ed. 1911), was quoted. We said that the application of the doctrine is confined within definite limitations. Its application presupposes a contract which for some reason is unenforceable, that such contract has been fully performed and that the municipal corporation has accepted and is enjoying the benefits occurring from its performance, citing Mallory v. Olympia, 83 Wash. 499, 145 P. 627 (1915). While there is language in Hailey v. King County, supra, which might be construed to mean that an implied contract will be found only where the city has acquired property of the plaintiff as a result of a performance of his contract, we do not find that our cases have restricted the doctrine of implied contract or estoppel within such narrow limits. In Chandler v. Washington Toll Bridge Authority, 17 Wn.2d 591, 137 P.2d 97 (1943), relied upon in Hailey v. King County, supra, an engineer who had rendered services in the preliminary planning of a bridge under an express contract with three individuals holding a franchise to build the bridge, sought compensation from the State. This court held that the State was a third-party beneficiary under the contract and thus was under no obligation to compensate the engineer, even though it had benefited from his services. The rule of that case appears sound. Stoddard v. King County, 22 Wn.2d 868, 158 P.2d 78 (1945), was another case in which the plaintiff sought to obtain specific performance of an alleged agreement for personal services which had resulted in no tangible benefit to the county. It was also found in that case that the alleged contract was a conditional one and that the condition had not occurred. None of the cases relied upon by the appellants was decided upon facts similar to those before us. All of them were cases in which the plaintiff was seeking to enforce the alleged contract and in none of them was it found that the plaintiff had conferred a tangible benefit upon the municipality, at the request of an agent clothed with apparent authority to bind the municipality. It was not suggested in any of them that the alleged contract was made in a proprietary capacity. Here the contract has been fully executed and it is the municipal authorities who are seeking to compel forfeiture of the payment which they have made and which was admittedly earned. In answer to the appellants’ contention that the doctrine of apparent authority cannot apply to a municipality, the respondents cite two cases which have held the doctrine applicable. They are Fordney v. King County, 9 Wn.2d 546, 115 P.2d 667 (1941), and Seattle v. Stirrat, 55 Wash. 560, 104 P. 834 (1909). In Fordney v. King County, supra, the county property agent contracted with one Seresum to demolish a county-owned building. The agent gave Seresum the wrong address and consequently Seresum demolished plaintiff’s building. The plaintiff sued both the county and Seresum, and Seresum cross claimed against the county. The jury found in favor of the plaintiff against the defendants and in favor of Seresum on his cross claim. This court affirmed, rejecting the county’s contention that the property agent had no authority to enter into such a contract. The case was a tort action but it was necessary to decide whether the county’s purchasing and property agent had authority to bind it, even though his authority was not conferred in the manner provided by law. This court said that the authority of an agent may be implied from an established course of conduct and cited Seattle v. Stirrat, supra. In the latter case this court had said that the doctrine is applicable where the municipality is engaged in a proprietary function. In the case of Fordney v. King County, supra, the contract appears to have been made pursuant to a governmental function. No point was made of this in the opinion, however. It was the evident purpose of this court to do justice to the third-party claimant who had suffered damage as a result of the negligence of a person irregularly hired by an agent of the county. In the case of Seattle v. Stirrat, supra at 564-66, we set forth the rule governing the application of the doctrine of apparent authority to acts of agents of municipal corpora tions, to which we felt that this court should commit itself. We said: A municipal incorporation possesses a two-fold character. It exercises under a grant or charter a part of the sovereign power of the state, but in thus exercising its power and to promote the ends of government and the convenience of its inhabitants, it may, and frequently does, act as an agent for the citizen. With reference to its first or governmental power, it acts strictly as a public corporation. It is held by its charter and cannot be bound by any act committed ultra vires by its officers. It is upon this principle that the cases of Paul v. Seattle, 40 Wash. 294, 82 Pac. 601 [1905], and Arnott v. Spokane, 6 Wash. 442, 33 Pac. 1063 [1893], must be held to rest. In the exercise of its proprietary or private functions, it is held to its private contracts, and is subject to estoppels as is any private corporation. “When the municipality undertakes to supply, to those inhabitants who will pay therefor, utilities and facilities of urban life, it is engaging in business upon municipal capital and for municipal purposes but not in methods hitherto considered municipal. It is a public corporation transacting private business for hire. It is performing a function, not governmental, but often committed to private corporations or persons, with whom it may come into competition. The function may be municipal but the method is not. It leads to profit, which is the object of the private corporation. Some courts and authors therefore term the municipality in this aspect a quasi-private corporation.” 28 Cyc. 125. Seattle v. Stirrat, supra, was a case which arose out of the performance of a contract between the defendants in that case and the City of Seattle. The defendants had paid money to the comptroller pursuant to their custom and their understanding of their obligation. It was the city’s showing that the comptroller had no authority to receive these funds. The comptroller had absconded and the city was endeavoring to recover its loss from the defendants. We held that the city was bound by the acts of its agent done in the exercise of his apparent authority. The fact that a municipality may be bound by the acts of its agents done pursuant to their apparent authority was also recognized in the case of Gehr v. Ferry County, 179 Wash. 68, 36 P.2d 71 (1934). While this court found that the plaintiff had failed to establish the existence of an implied contract to extend a lease, it stated the rule to be that, where a municipal corporation has entered into a contract which for some reason may be void (either through jurisdictional defect in the proceedings leading up to the contract or want of authority of the officer undertaking it to bind the municipality), the municipality will not be permitted to retain the benefits of labor and material furnished pursuant to the contract without paying its reasonable value. We said that in all of the cases cited therein in support of the stated rule, there was real or apparent power in the body or officer entering into the contract to bind the municipality. Most of the appellant municipalities were proprietary corporations, having as their sole function the conducting of a business for the benefit of the community, and those which had governmental functions were participants in the antitrust litigation as a result of expenditures made in pursuit of their proprietary functions. It is not contended to the contrary. In the production and sale of electricity, a municipal corporation acts in its proprietary capacity. State ex rel. Northwestern Elec. Co. v. Superior Court, 28 Wn.2d 476, 183 P.2d 802, 173 A.L.R. 1351 (1947), and see Washington Natural Gas Co. v. PUD 1, 77 Wn.2d 94, 459 P.2d 633 (1969). 2 C. Antieau, Municipal Corporation Law § 19.14 (1973). It is not suggested that any of the appellants lacked authority to engage the services of O’Connell to coordinate their antitrust litigation or to authorize him to contract with Alioto to represent the appellants in the conduct of that litigation. Not only have we expressly held that the doctrine of apparent authority may be invoked against a municipal corporation where it exercises a proprietary function, but we have also recognized that the equitable principles of estoppel and implied contract, in both of which “apparent authority” plays a part, may apply, even where the function being performed is governmental, provided the particular contract is not ultra vires. The principles to be derived from all cases are: (1) if there was no contract, express or implied, and the plaintiff was a mere volunteer, he cannot recover compensation; (2) even though there was an express contract, if it was ultra vires, the plaintiff ordinarily cannot recover upon either the contract itself or an implied contract, even though he has performed in reliance upon the authority of the agent with whom he has contracted; (3) if there was an express contract but the agent or agents with whom the plaintiff contracted lacked authority to enter into it because of some procedural or other defect and the plaintiff, without having himself performed, seeks to obtain specific performance, the court will not enforce the contract, even though it was one which was within the power of the municipality to make; (4) if the alleged contract was one for purely personal services, resulting in no tangible benefit to the municipality, the court will not find an implied contract; (5) if, on the other hand, such an express contract has been performed by the plaintiff with the result that a tangible benefit has been conferred upon the municipality, and he seeks to hold the municipality liable under its terms, the court will not enforce the contract itself but will hold the municipality liable to pay the reasonable value of the benefit or services, finding an implied contract upon the theory of unjust enrichment; (6) the doctrine of apparent authority may be invoked against a municipal corporation in the exercise of its proprietary functions and will be applied in a case where it is necessary to do justice between the parties. Insofar as we have been able to ascertain, we have never been asked to set aside a contract of a municipality which has been fully performed on both sides, upon the ground that it was not properly authorized; and no case has been cited in which a court has done so. The legislature in removing the immunity of the State and its subdivisions from tort liability (see RCW 4.92.090, Kelso v. Tacoma, 63 Wn.2d 913, 390 P.2d 2 (1964)) and our cases applying the doctrine of apparent authority where proprietary functions are involved and the doctrines of implied contract or estoppel where agents of a municipality have purported to act for it and entered into a contract which, though not expressly authorized, is within the corporate powers, all indicate that it is the developing tendency of both the legislature and the courts to recognize that public bodies should be held to the same standards of conduct in dealing with private citizens that are imposed upon the private citizens themselves. The purpose of the rules protective of public bodies is to prevent fraud, mistake, rashness, or indiscretion of public agents, it is not their purpose to foster unjust enrichment; and where the application of such rules would produce that result, we have found that equitable principles properly can be invoked. •Upon the facts of this case, we think the trial court properly-held that the doctrine of apparent authority could be invoked. The municipalities, while insisting that the respondent Alioto was required at his peril to ascertain whether the respondent O’Connell had express authority to enter into the 1965 modification of the original agreement, conferred by ordinance or resolution, are themselves relying upon, a contract authorized with no greater formality than the 1965 modification. Only five of them were participants in the antitrust litigation at the time the first agreement was signed by O’Connell and Alioto. They point -to no evidence that any of these had formally authorized either the designation of O’Connell as their agent, or his employment of Alioto as their special counsel. If there was authority at all, insofar as the evidence cited in the briefs of the appellants discloses, it was an authority implied in resolutions authorizing the municipal corporations and their attorneys to join with the Attorney General in pursuing the antitrust litigation. Those resolutions do not expressly empower the corporate officers or attorneys to designate O’Connell or anyone else their agent or to employ special counsel. Yet it is not denied that the appellants all acquiesced in O’Connell’s management of the litigation and his employment of Alioto. The 1962 agreement to pay a contingent fee of 15 percent, with a ceiling of $1 million, was not formally authorized, for aught that is shown by the appellants, nor was it formally ratified. The only ratification which their statement of the facts shows is an implied ratification, by those who were at the time participants in the litigation, flowing from their failure to object after the respondent had sent them copies of the letter agreement. Of those appellants who joined the group after this agreement was entered into, at least two (Snohomish County PUD and Clallam County PUD) made separate agreements which included no fee ceiling. It might also be inferred that all of the appellants (except those having separate agreements) impliedly ratified both O’Connell and Alioto agreements when they formally approved the settlements which were entered into with each defendant in the antitrust cases and accepted without question the check which each received as its proportionate share. Not only do our cases indicate that the doctrine of apparent authority properly can be invoked in a case such as this, where the function with which the contract is concerned is proprietary rather than governmental, the contract is one which it was within the power of the municipality to make, and the municipality has received substantial benefits as a result of its performance; but we think the appellants must be estopped to question the propriety of an instruction advising the jury that it can consider this doctrine, when they themselves have asserted the validity of a contract entered into with no greater formality than that which they claim was unauthorized and to which less than half of the appellants were parties. Having conducted their relations with the respondents with a casual informality from the inception of the antitrust litigation and relying themselves upon an agreement informally approved, they cannot now be heard to say that the respondent Alioto was not entitled to rely upon the apparent authority of their agent. We find no reversible error in the giving of instructions. Under the instructions which the court gave, the appellants could and did argue to the jury their theories which were applicable under the pleadings and the evidence. It is earnestly argued by the appellants that the trial court should have directed a verdict or granted them judgment notwithstanding the verdict. The arguments which are made in support of this contention all assume that the jury was obliged to accept that version of the evidence which was most favorable to the contentions of the appellants and to reject that which supported the position of the respondents. This, of course, is not the law. Our state constitution, article 1, section 21, provides that “the right of trial by jury shall remain inviolate.” In Jensen v. Shaw Show Case Co., 76 Wash. 419, 421, 136 P. 698 (1913), this court said concerning that article: This provision is pregnant with meaning. The courts have no right to trench upon the province of the jury upon questions of fact. It is only where there is no evidence, either direct or circumstantial, which warrants the verdict of the jury, that the courts may interfere. In proper cases, the jury is an arm of the court; its province is to find the facts, and the province of the court is to declare the law. Where motions for judgment notwithstanding the verdict or a new trial are denied, the verdict of the jury is before us, reinforced by the trial judge’s approval, or, if not approval, his recognition that there is no reason why the verdict should be set aside. Coppo v. Van Wieringen, 36 Wn.2d 120, 217 P.2d 294 (1950), and Fogarty v. Northern Pac. Ry., 85 Wash. 90, 147 P. 652 (1915). As we have said on so many occasions, this court will overturn a jury’s verdict only rarely and then only when it is clear that there was no substantial evidence upon which the jury could have rested its verdict. Valente v. Bailey, 74 Wn.2d 857, 447 P.2d 589 (1968), and cases cited. This court will not willingly assume that the jury did not fairly and objectively consider the evidence and the contentions of the parties relative to the issues before it. Phelps v. Wescott, 68 Wn.2d 11, 410 P.2d 611 (1966). The inferences to be drawn from the evidence are for the jury and not for this court. The credibility of witnesses and the weight to be given to the evidence are matters within the province of the jury and even if convinced that a wrong verdict has been rendered, the reviewing court will not substitute its judgment for that of the jury, so long as there was evidence which, if believed, would support the verdict rendered. Burke v. Pepsi-Cola Bottling Co., 64 Wn.2d 244, 391 P.2d 194 (1964). There was evidence upon which the jury could find that the plaintiffs in this action (other than the State of Washington, for whom O’Connell, as Attorney General, was authorized by statute to act) informally authorized O’Connell to represent them in organizing antitrust litigation, that they authorized him to secure the services of Alioto, to agree upon a contingent fee of 15 percent and to conduct all of their business with him; that, although a ceiling of $1 million was originally imposed upon the fees to be paid to Alioto, it was never contemplated that the amounts which would be recovered in the antitrust suits would be sufficient to make this provision operative; that additional services were required of him which justified the removal of this ceiling, and that the removal was done by O’Connell with the acquiescence of leaders of the appellants’ antitrust group. The jury also could find that Faler also worked upon the cases, devoting most of his time to the antitrust litigation over a period of years, with the consent and acquiescence of the municipal appellants; and that the remuneration paid him by the municipalities was not adequate compensation for the services he rendered. It could find that the services of O’Connell and Faler were valuable to Alioto, as well as to the municipal appellants, and that the fees which he shared with them were reasonable and proper. ■ The jury also could find upon the evidence presented that O’Connell and Faler accepted no fees for work which they did for the State of Washington; that, although they used state stationery and O’Connell used the title “Attorney General” in correspondence regarding the lawsuits, this was proper since the State was a party to the action, albeit holding only a small fraction of the total claims, and that these things were done with the approval of the other appellants and,m no way deceived them; that 'while the services of state employees were used, complete reimbursement was made to the State for all state time and equipment used in behalf of the non-State plaintiffs. The jury also could find that the officers and agents of the municipalities had, prior to 1967, notice of facts which should have caused them to inquire as to whether the fee ceiling had been removed and what arrangements were being made for compensation of O’Connell and Faler, if they considered these questions important. Since the jury found against the State on the merits on its claims against the respondents O’Connell and Faler, however, it is reasonable to conclude that its verdict as to the other appellants was also based upon the merits, and not upon the running of the statute of limitations. The municipalities insist that the respondents had a duty, as a matter of law, to advise them of the fact that the fee ceiling had been removed and of the fact that Alioto was paying O’Connell and Faler for their services in assisting him. No case is cited which supports this contention. Under the applicable instruction given, which the appellants concede is a correct statement of an attorney’s duty, the jury was entitled to examine the evidence, to draw the inferences from it which it deemed reasonable, and to determine whether the officers and agents of the municipal appellants knew or should have known of these matters and whether they were important to them. The jury was entitled to consider the obvious fact that where cases of the size and complexity of those which were handled by the respondents in this suit are being litigated, all the lawyers involved could not be expected to be in communication with all of the plaintiffs. As the record shows, each of the municipal corporations was represented by its own counsel in its dealings with O’Connell and Faler. Because the various municipalities were located in different parts of the state and perhaps for the additional reason that their officers and agents in many instances were dubious about the value of the antitrust claims, only a few of the attorneys (mainly members of the steering committee of WUAG) had more than occasional contact with O’Connell and Faler and none ever discussed the employment contract with Alioto, who dealt primarily with O’Connell, as he was told to do in the original agreement and as the evidence showed it was intended by the appellants that he should do. The jury was entitled to take into consideration also the fact that the handling of these cases was left almost entirely in the hands of the respondents, and that the chief interest of the various appellants appeared to be in learning the amount of settlement offers as they were made from time to time and determining whether the settlements should be accepted. Upon the evidence the jury could reasonably find that the officers and attorneys of the appellant municipal corporations were not concerned about the question whether Alioto should be allowed additional compensation for responsibilities not contemplated when the first fee arrangement was made, or about the question of how or whether O’Connell and Faler were being compensated for their services on behalf of the municipal corporations. The jury could take into account the fact that attorneys and officers of each municipal corporation had knowledge of its proportionate interest in the total settlement in each case and the total amount thereof, and the amount which it was paid, and-could easily have computed the attorneys’ fees. It could also infer that the knowledge which these attorneys and officers had that O’Connell and Faler were rendering extensive and valuable services in their behalf, should have caused them to inquire as to how these services would be adequately compensated if, in fact, they were interested in that question. The jury also could consider the undisputed evidence that Alioto, with the help of O’Connell and Faler and other attorneys (in whose identity and the amount of whose compensation the municipal appellants appear to have no interest) secured for the appellants benefits far more substantial than they could have obtained had they been represented by any other attorneys whose services were available, and that the fees exacted were lower than any other attorneys had indicated a willingness to accept. They also could consider the evidence that none of the original parties anticipated that recoveries in the antitrust litigation would bé so great that the fee ceiling would become applicable, and to infer that they would not have imposed such a ceiling if this development had been foreseen. This evidence was significant for the jury to take into account in considering whether the fact of the removal of the ceiling and the sharing of fees were matters of material interest to the municipalities. The jury also could consider the absence of any evidence tending to show that the municipalities would have pursued a different course had they been expressly notified of these things. The appellants suggest that it would be unconscionable for this court to condone the conduct of the respondents in failing to affirmatively advise them of the fee arrangements. Judging the conduct of the parties was the jury’s function and is not that of this court. The jury, an admittedly representative and fair one, exercising the conscience of the community, did not need to approve O’Connell’s negligence or reticence in the matter of advising the plaintiffs about the fee revision or the fact that he was paid for his services on behalf of the municipalities in order to conclude that the respondents had earned their fees and that the alleged facts upon which the right to forfeiture was claimed had not been proven. It should not be surprising that the diligent research of counsel and of the members of this court has not disclosed a case in which a court has considered the right to compel forfeiture of attorney fees under circumstances like those involved here. It is hardly to be expected that, in the normal course of human relations, the client who has paid his attorney a reasonable fee for services which have admittedly resulted in a substantial and unexpected benefit to the client, will seek to obtain a refund of the entire fee upon the assertion that he was not aware of the amount that was being paid or that the fee was shared with other attorneys who admittedly rendered services with the knowledge of the client. The case is thus sui generis. Forfeitures are not favored in the law. Clausing v. DeHart, 83 Wn.2d 70, 515 P.2d 982 (1973); and see Leonard v. Seattle, 81 Wn.2d 479, 503 P.2d 741 (1972). The jury’s verdict was in harmony with this principle. It would be unconscionable for this court to set aside the verdict — after the jury sat for more than 6 months, listening to the witnesses and considering the evidence — in the absence of a clear showing of error in the conduct of the trial. Such a showing has not been made. The record shows that the appellants were given a very long day in court. It is not suggested that either the judges who presided over this case or the jury which decided the facts were swayed by passion or prejudice. The verdict is supported by substantial evidence and will not be disturbed. The respondent Alioto has cross-appealed, assigning error to the Superior Court’s refusal of his motion for attorneys’ fees which was based upon RCW 4.28.185(5). That statute provides that in the event a defendant is personally served outside the state on one of the causes of action enumerated therein and prevails in the action, there may be taxed and allowed to him as part of the cost of defending the action a reasonable amount to be fixed by the court as attorneys’ fees. The trial court was of the opinion that this provision is discretionary and not mandatory. We think that is the proper interpretation to be placed upon it. See Andersen v. Gold Seal Vineyards, Inc., 81 Wn.2d 863, 505 P.2d 790 (1973). That being the case, this court will not set the trial court’s ruling aside in the absence of a clear showing of abuse of discretion. We do not find that such a showing has been made. The question of whether attorney’s fees should be allowed to the respondent Alioto in this court is one which we will consider upon proper application. Since we have reached the conclusion that the trial was conducted without error insofar as the appellants’ contentions are concerned and that the judgment entered on the verdict should be sustained, it becomes unnecessary to discuss a second assignment of error directed to the dismissal of the respondent Alioto’s counterclaim. Costs of this appeal will be borne by the appellants in ratio to their respective interests in the antitrust litigation. The judgment is affirmed. Finley, Hunter, and Hamilton, JJ., and Evans and Wiehl, JJ. Pro Tern., concur. Mr. Novak received a total fee of $47,176.47. However, he charged less than the fee agreement. Since we affirm the judgment entered on the verdict in this action, we are not called upon to consider and do not pass upon the question whether an attorney who fails to advise his client of material matters affecting the client’s interest must forfeit his attorney’s fees, irrespective of the fact that the client has suffered no damage by reason of the nondisclosure. Proof of damage is ordinarily required in a malpractice action. See generally 7 Am. Jur. 2d Attorneys at Law § 167 et seq. And see Transcontinental Ins. Co. v. Faler, 9 Wn. App. 610, 513 P.2d 864 (1973). The respondent Faler did not file a brief on this appeal. The judge who presided over the trial during the first months, Judge Donald Gaines, died suddenly, and by order of this court Judge Stanley C. Soderland was appointed to conduct the remainder of the trial. For example, the appellants requested an instruction to the effect that a fiduciary cannot retain secret profits obtained in any transaction involving property or assets belonging to the party for whom he acts. The two cases cited as authority for the appropriateness of this proposed instruction, State ex rel. Hayes Oyster Co. v. Keypoint Oyster Co., 64 Wn.2d 375, 391 P.2d 979 (1964), and Johns v. Arizona Fire Ins. Co., 76 Wash. 349, 136 P. 120 (1913), both involve the taking of profits on business transactions conducted by company officers. In the latter case the defendant maintained that the “discount” he received on a transaction was in reality payment for future services, but this court was not impressed with that analysis of the transaction. Also, in that case it was shown that the discount would have been allowed to the company had it not been given to the officer. There is no contention in this case that a more favorable fee agreement could have been negotiated if the respondents O’Connell and Faler had not been paid by Alioto for their services. The term “profit” is generally associated -with entrepreneurial gain as distinguished from payment for services. See 34 Words & Phrases 404-40 (perm. ed. 1957); 34 Words & Phrases 54 (Cum. Supp. 1973). See also Webster’s Third New Int'l Dictionary at 1811 (1968). To describe as “profits” a fee paid for a lawyer’s services (and it must be kept in mind that the appellants have conceded that all the fees paid in this case were reasonable for the services rendered) is so awkward that we doubt the term has ever been used in that connection. In this case the fiduciary duty of the attorney to his client was fully explained to the jury in the instructions given. The theory which the appellants urge in support of their contention that the court erred in refusing their requested instruction is also advanced in their argument that the court should have given them judgment nowithstanding the verdict and will be discussed later in this opinion. We have indicated that the term “discovery” includes the concept of constructive notice. See Easton v. Chaffee, 16 Wn.2d 183, 132 P.2d 1006 (1943), where we said that it is the general rule that in an action based on fraud, the statute of limitations commences to run from the time of the discovery of the fraud, that is, from the time the defrauded person knew or should have known of its existence. At an. earlier stage, this lawsuit was viewed as one for damages resulting from a breach of the respondent attorneys’ duties to their clients. See Transcontinental Ins. Co. v. Faler, supra at n.1, where the Court of Appeals said that the appellants must prove their employment of the respondents, the respondents’ breach of a reasonable duty owed to the appellants, and that such breach was the proximate cause of loss to the appellants. This theory of the case was apparently abandoned before it went to trial, since the appellants made no attempt to prove damages and do not claim that they have suffered any. The theory of an accounting in equity was set forth by this court in Wester v. South Seattle Land Co., 174 Wash. 276, 286, 24 P.2d 633 (1933), quoting from Grand Bay Land Co. v. Simpson, 205 Ala. 347, 87 So. 186 (1921), as follows: “The mere filing of a bill for accounting implies that there were items on both sides, that the balance is uncertain, and that the true .amount and to whom due must be ascertained by the court. It further implies an offer on complainant’s part to pay any balance that might be found owing to the defendant without a specific averment of an offer to that effect. This is necessary to enable the court to do complete justice between the parties. Both parties are regarded as actors by the act of filing the bill, the register must state the full account between them, and the court must pass upon it, declaring their respective rights by a final decree;” . . . This principle includes the rule that one dealing with a public officer whose powers are defined by statute is presumed to know the limits of those powers. That rule disposes of a theory which is implicit in a number of the contentions of the municipal appellants — namely, that they had a right to rely on the apparent authority of the Attorney General to represent them at the expense of the state. A number of the attorneys for the municipalities, who were not elective officials, also received substantial contingent fees paid out of the antitrust.settlements apportioned to their respective clients.

Williams, C.J. Allen Dale Hudlow was convicted of two counts of first degree rape, two counts of first degree kidnapping, and one count of second degree assault. In the same trial, Douglas B. Harper was convicted of one count of first degree rape and two counts of first degree kidnapping. In a separate proceeding, Hudlow was found to be a habitual criminal under the provisions of RCW 9.92.090. Both Hudlow and Harper appealed. The Court of Appeals, Division Two, held the trial court abused its discretion in excluding evidence of the two victims' prior sexual behavior and reversed the convictions. State v. Hudlow, 30 Wn. App. 503, 635 P.2d 1096 (1981). The State now appeals that decision. For the reasons stated herein, we reverse the Court of Appeals and reinstate the convictions. The two complaining witnesses in this case were referred to by the Court of Appeals as Tammy Smith and Ellen Strong to protect their true identities. We shall do likewise. In a footnote, the court noted that ”[a]t trial it developed the women were known locally as Sunshine and Moonshine." Hudlow, at 504 n.1. Apparently, the two women introduced themselves to Hudlow and Harper by these nicknames. According to the two victims' testimony, when hitchhiking in Bremerton early on the morning of April 15, 1978, they accepted a ride from Hudlow and Harper. Hudlow allegedly threatened them with a knife and drove the two women to an isolated location outside Bremerton. There, Harper had sexual intercourse with Ms. Strong in the back seat of the car while Hudlow compelled Ms. Smith to perform oral sex on him in the front seat. Ms. Smith testified that after a few seconds of performing oral-genital intercourse on Hudlow, she gagged and vomited outside the passenger door. Hudlow then made the women change places. Hudlow forced Ms. Strong to finish performing oral sex on him, then he had sexual intercourse with her. The women testified that during all the sexual activity, Hudlow was armed with a 6-inch knife and that they submitted to the sexual activity to prevent injury to themselves. According to the testimony of Hudlow and Harper, the two women agreed to be driven to the isolated spot and, in fact, gave directions to that location. Both women allegedly agreed to consume some beer and a mixture consisting of cola and rum, and all four allegedly shared some marijuana cigarettes. Once there, Ms. Strong was said to have agreed to sexual intercourse with Harper in the back seat. At the same time, Ms. Smith refused to have sexual intercourse with Hudlow because she was menstruating, but allegedly offered to perform oral sex on Hudlow instead. When she did so, however, she began to gag but did not vomit. At this point, Ms. Strong suggested switching places with Ms. Smith. Ms. Strong then performed oral sex on Hudlow and thereafter had consensual sexual intercourse with him. Afterwards, Hudlow discovered that Ms. Strong had stolen his wallet, but he recovered it after an argument. Hudlow testified that during the sexual activity, he had with him only a small penknife which he did not remove from his pocket during the evening. No other knife was found by the police. Hudlow and Harper drove the two women back to Bre-merton where they were released. Shortly thereafter, the two women contacted the police who transported them to the hospital. Witnesses who saw Ms. Smith and Ms. Strong after the incident testified the women were extremely upset and frightened. A physician who examined Ms. Smith observed a mark on her abdomen similar to a bruise. The physician testified the mark was consistent with her claim of having been struck in the abdomen by Hudlow. At a closed hearing outside the presence of the jury, Hudlow and Harper made an offer of proof regarding the prior sexual behavior of Tammy Smith and Ellen Strong, pursuant to the procedures set out in former RCW 9.79.150(3), now codified as RCW 9A.44.020(3). The offer of proof consisted of the testimony of a sailor named Harry Proctor, who shared a house with six other sailors in Bremerton. Proctor testified that he had engaged in oral sex with both women on a number of occasions, and had had sexual intercourse with Ms. Smith at least twice and with Ms. Strong more often, but not on a regular basis. He testified that he had been involved in and witnessed Smith and Strong having "group sex" with one or two men at a time. In addition, Proctor related several hearsay statements of other men who professed to have had sexual relations with the complaining witnesses. He also claimed Ellen Strong admitted to sexual intercourse with numerous other sailors. Proctor testified that he discussed the two women's respective skills at oral sex with his roommates and that together, they formed a rating system to evaluate their respective performances in oral-genital sex, rating Ms. Strong the better of the two. Proctor had been told that Ms. Strong, knowing of the rating system, tutored Ms. Smith in oral sex. Proctor also related a number of other hearsay statements about the past sexual behavior of the complaining witnesses. Proctor concluded by describing the reputation for chastity of Tammy Smith and Ellen Strong as "loose" and stated that he and his roommates simply referred to them as "the whores". The trial court determined Proctor's testimony was relevant on the issue of consent, but ruled the probative value of the evidence was outweighed by its potentially prejudicial effect on the jury, the complaining witnesses, and the State. In making its ruling, the court considered the testimony of Proctor insofar as he testified from his own personal knowledge and did not consider any of the inadmissible hearsay testimony. The court concluded that the lifestyle of the women "would be so offensive to a substantial number of the members of the jury that the preju dice would get in the way of a fair trial". Report of Proceedings, at 40. The court therefore refused to permit introduction of the evidence either on direct or cross examination, although the trial judge later permitted limited cross examination on sexual matters when initiated by the prosecution. Subsequently, the jury returned verdicts of guilty on all counts. The Court of Appeals characterized the dispositive issue in this case as whether the trial court abused its discretion under the "rape shield" statute when it determined the probative value of evidence of the victims' past sexual behavior was substantially outweighed by the danger of undue prejudice. The court thereby avoided the issue of whether respondents' rights of confrontation were violated under the sixth amendment to the United States Constitution and Const. art. 1, § 22. We shall address both issues in regard to respondents' rights to present evidence in their defense and to confront and cross-examine adverse witnesses. I Direct Evidence Relating to Consent This case is governed by the former "rape shield" statute, RCW 9.79.150(3) (now recodified as RCW 9A.44.020(3)), which provides in part: In any prosecution for the crime of rape . . . evidence of the victim's past sexual behavior ... is not admissible if offered to attack the credibility of the victim and is admissible on the issue of consent only pursuant to the following procedure: (a) A written pretrial motion shall be made by the defendant to the court and prosecutor stating that the defense has an offer of proof of the relevancy of evidence of the past sexual behavior of the victim proposed to be presented and its relevancy on the issue of the consent of the victim. (c) If the court finds that the offer of proof is sufficient, the court shall order a hearing out of the presence of the jury, if any, and the hearing shall be closed . . . (d) At the conclusion of the hearing, if the court finds that the evidence proposed to be offered by the defendant regarding the past sexual behavior of the victim is relevant to the issue of the victim's consent; is not inadmissible because its probative value is substantially outweighed by the probability that its admission will create a substantial danger of undue prejudice; and that its exclusion would result in denial of substantial justice to the defendant; the court shall make an order stating what evidence may be introduced by the defendant. . . We have had occasion to construe the rape shield statute only once before in a case quite dissimilar in its facts. See State v. Demos, 94 Wn.2d 733, 619 P.2d 968 (1980) (evidence of prior rape complaints by rape victim not admissible where defendant was unable to prove the prior complaints were unfounded). The Washington courts of appeal have addressed the applicability of the statute on several occasions, and thus provide the only existing authority so far in this state. Former RCW 9.79.150(3) makes evidence of the victim's past sexual behavior admissible on the issue of consent only if: (1) it is relevant; (2) its probative value substantially outweighs the probability that its admission will create a substantial danger of undue prejudice; and (3) its exclusion will result in denial of substantial justice to the defendant. Since all three factors must be satisfied before evidence of a victim's past sexual behavior may be admitted to show consent, we will examine each of those factors at some length. A Relevance of Prior Sexual Conduct According to ER 401, relevant evidence is defined as fol lows: "Relevant evidence" means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. Former RCW 9.79.150(2) begins by making evidence of the victim's past sexual behavior inadmissible on the issue of the victim's credibility. That provision goes on to state that such evidence is inadmissible to prove the victim's consent unless the procedures of former RCW 9.79.150(3) are followed. At the very outset, then, credibility is ruled out altogether as the basis for introducing past sexual conduct and consent is made a suspect justification for the introduction of such evidence. At least one law review article has charged that Washington's rape shield law conflicts with common law rules of impeachment and cannot be squared with the accused's right of confrontation under the Sixth Amendment. Tanford & Bocchino, Rape Victim Shield Laws and the Sixth Amendment, 128 U. Pa. L. Rev. 544, 581 n.179, 582 n.180 (1980). The above characterization of Washington's rape shield statute is wrong for at least two reasons. First, the prohibition of sexual conduct evidence is directed at the use of such evidence for impeaching the victim's general credibility for truth and veracity. The old common law rule apparently recognized a woman's promiscuity somehow had an effect on her character and ability to relate the truth, whereas no such effect existed as to men: [S]uch evidence is inadmissible in any case for the purpose of impeaching the character of a male witness . . . It is a matter of common knowledge that the bad character of a man for chastity does not even in the remotest degree affect his character for truth, when based upon that alone, while it does that of a woman. (Italics ours.) State v. Sibley, 131 Mo. 519, 531, 33 S.W. 167 (1895). Former RCW 9.79.150(2) appears to us to be directed at the misuse of prior sexual conduct evidence based on this antiquated and obviously illogical premise. See also State v. Kalamarski, 27 Wn. App. 787, 792 n.4, 620 P.2d 1017 (1980) (McInturff, J., dissenting). Second, the defendant is permitted, under former RCW 9.79.150(4), to cross-examine and impeach the victim's testimony on her past sexual behavior if the prosecution raises the issue of her past sexual behavior in its case in chief. We shall specifically address the cross examination question in part II of this opinion. The presumption of inadmissibility of prior sexual conduct evidence on the issue of consent is a recent trend, reversing years of the opposite rule, and is based on the observation that such evidence is usually of little or no probative value in predicting the victim's consent to sexual conduct on the occasion in question. As stated in State v. Geer, 13 Wn. App. 71, 73-74, 533 P.2d 389 (1975): Such evidence [specific acts of sexual misconduct by the prosecutrix] has little or no relationship to either the ability of the prosecuting witness to tell the truth under oath or her alleged consent to the intercourse. See also State v. Cecotti, 31 Wn. App. 179, 182, 639 P.2d 243 (1982); State v. Blum, 17 Wn. App. 37, 46, 561 P.2d 226 (1977); Comment, Evidence — Admissibility of the Victim's Past Sexual Behavior Under Washington's Rape Evidence Law — Wash. Rev. Code § 9.79.150 (1976), 52 Wash. L. Rev. 1011, 1028-37 (1977). The inquiry as to the relevancy of prior sexual behavior of the complaining witness must be whether, under ER 401, the woman's consent to sexual activity in the past, without more, makes it more probable or less probable that she consented to sexual activity on this occasion. In other words, does the mere fact of prior consensual sexual activity have any value in predicting whether a woman would consent again? We believe that, without more, such evidence does not even meet the bare relevancy test of ER 401. The argument that past consent to sexual conduct is relevant assumes a woman's consent to have sex with one or more men makes her somehow more likely to consent to other men. As pointed out in Abraham P. Ordover's article, Admissibility of Patterns of Similar Sexual Conduct: The Unlamented Death of Character for Chastity, 63 Cornell L. Rev. 90, 98 (1977), this reasoning is based on the following faulty syllogism: Major Premise: Women who possess the character trait of unchastity consent more readily than chaste women to sexual intercourse. Minor Premise: The complainant's reputation establishes that she possesses the character trait of unchas-tity. Conclusion: The complainant's character trait of un-chastity makes her consent more likely than if she lacked this trait. (Footnote omitted.) Ordover points out the conclusion is invalid because the major premise is grounded in the moral judgment that women who engage in nonmarital intercourse are "immoral", and that such immoral women are more likely to consent to sexual intercourse on any given occasion. Once the woman's immoral character is established, the fact finder could infer consent not from specific behavioral patterns, but rather from the woman's membership in the class of women of unchaste character. Without other factors tending to indicate the past consensual sexual activity is factually similar in some respects to the consensual sex act claimed by defendant, it should not be considered relevant. Factual similarities between prior consensual sex acts and the questioned sex acts claimed by the defendant to be consensual would cause the evidence to meet the minimal relevancy test of ER 401. For instance, if a complaining witness frequently engages in sexual intercourse with men shortly after meeting them in bars, this would have some relevancy if the defendant claims she consented to sexual intercourse with him under similar circumstances. Such a particularized factual showing would demonstrate enough similarity between the past consensual sexual activity and defendant's claim of consent that it would have the necessary predictive value required by ER 401. Nevertheless, this evidence may be so slightly relevant in comparison to its prejudicial effect that it may not be admitted into evidence. Former RCW 9.79.150(3); ER 403. It has been suggested that other factual situations may exist in which past sexual conduct may be relevant, such as: (1) evidence of prior sexual conduct by complainant with defendant; (2) to rebut medical evidence on proof of origin of semen, venereal disease or pregnancy; (3) distinctive sexual patterns so closely resembling defendant's version of the alleged encounter as to tend to prove consent on the questioned occasion; (4) evidence of prior sexual conduct by complainant with others, known to the defendant, tending to prove he believed the complainant was consenting to his sexual advances; (5) evidence of sexual conduct tending to prove complainant's motive to fabricate the charge; (6) evidence tending to rebut proof by the prosecution regarding the complainant's past sexual conduct; and (7) evidence of sexual conduct offered as the basis of expert psychological or psychiatric opinion that the complainant fantasized or invented the acts charged. Berger, Man's Trial, Woman's Tribulation: Rape Cases in the Courtroom, 77 Colum. L. Rev. 1, 98-99 (1977). Other commentators have made similar suggestions and the rape shield statutes in many states reflect these or other circumstances which may cause past sexual conduct evidence to be relevant and perhaps admissible. See Tanford & Bocchino, Rape Victim Shield Laws and the Sixth Amendment, 128 U. Pa. L. Rev. 544, 591-602 (1980). Once other circumstances are identified which make the prior consensual sexual activity factually closer to the defendant's version of the story and the evidence is deemed relevant, the probative value must be balanced against the potentially prejudicial effect. B Probative Value Versus Prejudice Former RCW 9.79.150(3) calls for a balancing process whereby the probative value of the evidence must substantially outweigh the probability that its admission will create a substantial danger of undue prejudice. This standard is roughly the equivalent of the standard stated in ER 403. The Court of Appeals in the present case determined that the trial court erred in considering the possible adverse effects of the evidence on the victims rather than limiting consideration to the effect such evidence would have on respondents' rights to fair trials. State v. Hudlow, 30 Wn. App. 503, 509-10, 635 P.2d 1096 (1981). In so doing, the court quoted with approval from Tanford & Bocchino, at 569-70: Traditional evidence law recognizes that otherwise relevant evidence may be inadmissible because it would have the effect of disrupting the trial or sidetracking the search for truth. . . . The ground most frequently put forth in support of a blanket rule excluding sexual history evidence is . . . that such evidence is "prejudicial" and that this effect outweighs its slight probative value. The issue is not whether evidence is prejudicial in the sense that it is detrimental to someone involved in the trial. Rather, the question is whether the evidence will arouse the jury's emotions of prejudice, hostility, or sympathy. Arguments that sexual history evidence is inadmissible because of its prejudicial impact on the rape victim miss the point. Adverse psychological effects suffered by crime victims, although regrettable, are not grounds for excluding probative evidence. (Italics ours.) Hudlow, at 509. In State v. Kalamarski, 27 Wn. App. 787, 789, 620 P.2d 1017 (1980), Division Three of the Court of Appeals held the prejudice referred to in the rape shield statute may be "either to the victim or the defendant." Division Three of the Court of Appeals recently followed the Kalamarski court's interpretation of prejudice as pertaining either to the victim or the defendant. State v. Mounsey, 31 Wn. App. 511, 521, 643 P.2d 892 (1982). Previously, Division Two of the Court of Appeals referred to "the danger of injecting undue prejudice against the prosecuting witness". State v. Williams, 18 Wn. App. 398, 405, 569 P.2d 1190 (1977). In the present case, the Court of Appeals cited to the above references in Kalamarski and Williams, but found neither case presented the issue in the same context as this case so it believed its decision did not conflict with either opinion. Hudlow, at 509 n.2. We agree with the Court of Appeals in this case that the balancing process should focus not on potential prejudice and embarrassment to the complaining witnesses, but instead should look to potential prejudice to the truthfinding process itself. Rape shield statutes such as the one before us are, by their very nature, intended to minimize the embarrassment and humiliation to the prosecuting witness by limiting the introduction of evidence of prior sexual behavior. Thus, considerations of prejudice to the victim are built into the rape shield statute and further consideration of that factor may go too far in protecting the victim at the expense of defendant's right to a fair trial. The prejudice to the factfinding process itself must be considered to determine whether the introduction of the victim's past sexual conduct may confuse the issues, mislead the jury, or cause the jury to decide the case on an improper or emotional basis. In addition to legitimate state concerns in preserving the integrity of the truthfinding process, the statute requires the trial judge to consider the effect of excluding such evidence on defendant's right to a fair trial. Former RCW 9.79.150(3)(d). These considerations — the integrity of the truthfinding process and defendant's right to a fair trial — should be the factors considered by the trial court in exercising its discretion to admit or exclude the evidence. Further consideration of the impact of past sexual behavior evidence on the complaining witness, as in Kalamarski and Williams, should no longer be the standard for balancing the probative value of such evidence against its possibly prejudicial effect. C Defendant's Right to Substantial Justice The Court of Appeals in the present case noted its belief that the trial court gave too much weight to the prejudicial effect of the evidence on the jury and too little consideration to the respondents' rights to fair trials. The court specifically noted that respondents' testimony that two women whom they had never before met had agreed to engage in sexual intercourse with them was highly implausible, absent the evidence the two women were highly promiscuous. The court concluded by stating the " [t]rial court's ruling simply eviscerated the defense". Hudlow, at 511. The trial court was reversed for abuse of discretion in not admitting evidence of the victims' past sexual behavior, but the court also recognized that a contrary ruling could conflict with respondents' rights of confrontation and compulsory process. Hudlow, at 506-07. The sixth amendment to the United States Constitution and Const. art. 1, § 22 grant criminal defendants two separate rights: (1) the right to present testimony in one's defense, Washington v. Texas, 388 U.S. 14, 23,18 L. Ed. 2d 1019, 87 S. Ct. 1920 (1967); and (2) the right to confront and cross-examine adverse witnesses, Davis v. Alaska, 415 U.S. 308, 39 L. Ed. 2d 347, 94 S. Ct. 1105 (1974); Chambers v. Mississippi, 410 U.S. 284, 35 L. Ed. 2d 297, 93 S. Ct. 1038 (1973). See also State v. Boast, 87 Wn.2d 447, 453, 553 P.2d 1322 (1976). Of course, a criminal defendant has no constitutional right to have irrelevant evidence admitted in his or her defense. Washington v. Texas, supra at 16. See generally E. Cleary, McCormick on Evidence § 185 (2d ed. 1972 & Supp. 1978). Former RCW 9.79.150(2) and (3) are directed to the right of a defendant to present relevant evidence in his defense; former RCW 9.79.150(4) is directed to the confrontation and cross examination guaranties. Like any constitutional right, these rights have limits. Although the defendant has the right to put on relevant evidence, this right may be counterbalanced by the state's interest in seeing that the evidence is not so prejudicial as to disrupt the fairness of the factfinding process. This balancing process has been suggested in the cases of Davis and Chambers as permissible, but the importance of the state interest necessary to exclude the evidence has not been fully defined. Tanford & Bocchino, at 556 et seq. suggest the state must demonstrate a compelling state interest to exclude a defendant's relevant evidence. Recently, the Michigan Court of Appeals followed this rationale in holding a defendant had the right to impeach the credibility of an adverse witness with eight felony convictions ranging from 13 to 40 years old despite Michigan's version of ER 609(b), which limits such evidence to 10-year-old convictions: [I]t is clear that any attempt to limit meaningful cross-examination, whether it be by legislative act, judicial pronouncement or court ruling upon the admissibility of evidence, court rule, or the common law, must be justified by a compelling state interest. Where a statute or court ruling is challenged on grounds that it unduly restricts the Sixth Amendment right to confrontation, the state's interest in the rule must be balanced against the fundamental requirements of the constitution. Davis v Alaska, supra, People v Kahn, 80 Mich App 605, 612; 264 NW2d 360 (1978). (Italics ours.) People v. Redmon, 112 Mich. App. 246, 255, 315 N.W.2d 909 (1982). We believe the "compelling state interest" requirement is the proper method of balancing the defendant's right to produce relevant evidence versus the state's interest in limiting the prejudicial effects of that evidence. We now adopt that standard as our own. In the case at bar, if the evidence of prior sexual history of the complaining witnesses is not relevant under ER 401 standards, there is no problem under the Sixth Amendment or Const. art. 1, § 22. If the evidence is of minimal relevancy, the evidence may be excluded if the State's interest in applying the rape shield law is compelling in nature. Here, the State's interest in applying the rape shield statute is to bar evidence that may distract and inflame jurors if it is of arguable probative worth. To the degree exclusion of prior sexual history evidence aids in achieving just trials and preventing acquittals based on prejudice against the victims' past sex lives, it tends to further the truth-determining function of criminal trials. Further, the statute is designed to encourage rape victims to step forward and prosecute these crimes where conviction rates historically have been very low. The above state interests appear to us to be compelling enough to permit the trial court to exclude minimally relevant prior sexual history evidence if the introduction of such evidence would prejudice the truth-finding function of the trial. As to evidence of high probative value, however, it appears no state interest can be compelling enough to preclude its introduction consistent with the Sixth Amendment and Const. art. 1, § 22. See Davis v. Alaska, supra; Chambers v. Mississippi, supra; People v. Redmon, supra. D Application of the Rape Shield Statute As previously pointed out, evidence of the victim's past sexual behavior is admissible under former RCW 9.79- .150(3) on the issue of consent only if: (1) it is relevant; (2) its probative value substantially outweighs the probability that its admission will create a substantial danger of undue prejudice; and (3) its exclusion will result in denial of substantial justice to the defendant. In determining the relevancy of the victims' prior sexual behavior on the issue of consent, it must be demonstrated that the evidence will make it more probable or less probable that they consented to sexual activity on this occasion. The evidence proffered by the defense concerned only the general promiscuity of the two victims and lacked further indicators showing any past consensual sexual activity comparable to the story offered by respondents Hudlow and Harper. Mr. Proctor's testimony failed to show any factual similarities between the incident forming the basis of the present charges and any of the past sexual activity allegedly consented to by Ms. Smith or Ms. Strong. For instance, no testimony was offered showing that the two women had ever engaged in sex with men other than sailors whom they knew or that they had sexual relations with men who had picked them up hitchhiking. Such evidence would have had greater value in aiding the jury to predict whether consent was given in this case. Without such particularized factors, however, the relevancy of the evidence was limited at best. Further, the testimony of Mr. Proctor was full of inadmissible hearsay evidence in which he related unverifiable incidents of sexual activity involving the two victims. The trial court heard all the testimony, but properly considered only the evidence testified to by Mr. Proctor from his personal knowledge. Those limited instances do not establish such a pattern of indiscriminate consent to sexual activity as to be helpful in predicting whether there was consent in this case. We believe the testimony of Mr. Proctor was of little or no probative worth on the issue of consent in this case. The admissibility of past sexual behavior evidence is within the sound discretion of the trial court. State v. Blum, 17 Wn. App. 37, 46, 561 P.2d 226 (1977). The exercise of discretion in balancing the danger of prejudice against the probative value of the evidence is also a matter within the trial court’s discretion, and should be overturned only if no reasonable person could take the view adopted by the trial court. State v. Kalamarski, 27 Wn. App. 787, 789, 620 P.2d 1017 (1980); State v. Blum, supra at 56. We are unable to say the trial court abused its discretion in any way. Although the trial court did consider the possible prejudice to the victims in admitting evidence of their past sexual behavior, it is evident the court gave little weight to that factor. In ruling that the evidence should be excluded, the court concluded that the lifestyle of the women "would be so offensive to a substantial number of the members of the jury that the prejudice would get in the way of a fair trial”. Report of Proceedings, at 40. The trial court's ruling demonstrates its valid concern that introduction of such evidence would tend to confuse the issues, mislead the jury, or cause them to decide the case on an improper basis. See ER 403. The court's determination that the slight relevancy of the evidence was outweighed by its potentially prejudicial effect on the jury was proper under the circumstances and should not be disturbed. Finally, as to respondents' rights to substantial justice, we must again conclude the trial court's ruling was proper. Assuming that the past sexual behavior evidence was even slightly relevant, that evidence could constitutionally be excluded because of the compelling state interests furthered by the rape shield statute. Insofar as the rape shield law bars minimally probative evidence that may distract or inflame jurors to acquit defendants on the basis of prejudice, furthers the truth-determining function of rape trials, and encourages victims to report and prosecute sex crimes, it furthers compelling state interests. The trial court's decision to exclude the evidence did not deprive respondents of the ability to testify to their versions of the incident. They did so and simply were not believed by the jury. In conclusion, we believe the trial court properly applied former RCW 9.79.150 to exclude evidence of the victims' past sexual behavior. Although the Court of Appeals stated its belief that this was the one "exceptional case" warranting admission of this type of evidence, State v. Hudlow, 30 Wn. App. 503, 507, 635 P.2d 1096 (1981), we are of a contrary view given the nature of the evidence in this case. On this issue, we must reverse the Court of Appeals and reinstate the decision of the trial court. II Cross Examination To Impeach Testimony of Prosecuting Witnesses Respondents Hudlow and Harper next contend the trial court's ruling denied them the ability to effectively cross-examine and impeach the prosecuting witnesses in regard to their testimony about the actual rape incident. Specifically, they allege the prosecution introduced evidence of the victims' past sexual behavior in its case in chief and that they should have been permitted to cross-examine the victims as to their past sexual behavior under former RCW 9.79.150(4), which reads: (4) Nothing in this section shall be construed to prohibit cross-examination of the victim on the issue of past sexual behavior when the prosecution presents evidence in its case in chief tending to prove the nature of the victim's past sexual behavior, but the court may require a hearing pursuant to subsection (3) of this section concerning such evidence. (Italics ours.) Respondents refer to two specific instances of testimony elicited by the prosecution from Tammy Smith as the grounds for their argument. As to the first instance, the prosecutor asked Ms. Smith what respondent Hudlow said to her just before he forced her to perform oral-genital sex on him: Q: What did he say to you? A: He told me to play with myself. Q: And did you, you know, know what he meant by that? A: Yeah. Q: What did you tell him? A: I told him I didn't know how. Q: And what did he say in regard to that response? A: He told me, "It's about time you learned." Q: Then what happened? A: Then he told me that I had to give him a blow job. Q: Did you know what he meant by that? A: Yeah. . . . Q: What did you do when he asked you to give him a blow job? A: I told him I didn't know how. Q: What was his response? A: He just said he was going to — that I had to do it anyways. (Italics ours.) Supplemented Verbatim Report of Proceedings, at 152-53. The only additional direct testimony as to knowledge occurred during Ms. Smith's testimony of what happened to Ms. Strong: A: He made her ... he made her do ... he made her give ... he made her give him a blow job. Q: When you say, "give him a blow job", what do you mean, what does that terminology mean? A: He — you mean — it means oral sex. (Italics ours.) Supplemental Verbatim Report of Proceedings, at 158. Ms. Smith's direct testimony was to the effect that she told Hudlow that she did not know how to give a "blow job", but at the same time, she testified that she actually did know what the term meant. The defense counsel stated he wanted Ms. Smith to explain this "disparity" on cross examination. The relevant portion of that cross examination is as follows: Q: Miss [Smith], do you remember, on direct testimony, testifying that you were told that you had to give the driver a blow job? A: Yes. Q: Do you remember what your reply was to that? A: Yes. Q: Was it that you didn't know how? A: No. Q: Do you recall so being asked if you knew what that meant, do you remember being asked that by Mr. Sharpe? A: Yes. Q: Do you remember what your reply was to that question? A: No. Q: Did you reply yes? A: I didn't hear what you said. Q: Was your reply yes to Mr. Sharpe? A: No, before that? Q: I said, do you remember what your reply was? A: To what I said to him? Q: Yes. A: Oh. Yes. Q: How do you know what it means to give a blow job? A: (No response) Q: Can you answer that question? A: It means . . . Q: The question is how do you know what it means. A: How do I know what it means? Q: Yes. A: Because we talked about it at school. Q: By "We", who do you mean? A: We girls, us girls. Q: What does it mean to you? A: (No response) Q: Does it mean placing your mouth on the penis of a male? A: Yes. Q: That is what you talked about with the girls at school? A: Yes. (Italics ours.) Supplemental Verbatim Report of Proceedings, at 237-38. Our first inquiry must be whether, under former RCW 9.79.150(4), the prosecution presented evidence in its case in chief tending to prove Ms. Smith's past sexual behavior. We think not. The prosecution's line of direct examination was not an inquiry into whether Ms. Smith did or did not know what the term "blow job" meant from personal experience. Simply stated, the question was whether she understood the meaning of Hudlow's words. She answered that she did. After the question was asked and answered, further inquiry into the source of her knowledge was unnecessary. Neither was Ms. Smith's statement that she told Hudlow she did not know how to give a blow job an attempt to prove Ms. Smith's past sexual behavior. Obviously, she told Hudlow that she did not know how to perform oral sex as an evasive maneuver to escape having to perform the act. We do not think such testimony was intended or interpreted to convey ideas of Ms. Smith's sexual virtuousness. The most obvious infirmity with respondents' argument is that the defense, and not the prosecution, is opening up the area of Ms. Smith's previous sexual experience by asking how she knows what a blow job means. Former RCW 9.79.150(4) permits the defense to attack credibility when the prosecution opens the door to past sexual behavior. That did not occur here. Thus, the statute affords respondents no right to cross-examine her on the source of her knowledge. Further, even if the defense had been successful in eliciting information about whether Ms. Smith did or did not have prior personal experience at oral sex, it simply was not relevant to the credibility of her statement on direct examination. If she had personal experience as well as spoken knowledge of the term, her statements on direct examination would not be contradicted. Since the scope of such cross examination is within the discretion of the trial court and is to be disturbed only upon abuse of discretion, State v. Krausse, 10 Wn. App. 574, 577, 519 P.2d 266 (1974), we find no error because we find no abuse of discretion. The second portion of testimony pointed to by respon-. dents relates to Ms. Smith's testimony that she became sick and vomited as a result of forced oral sex. She made these statements on direct examination and repeated the testimony on cross examination. This evidence, like the previously discussed testimony, does not tend to prove Ms. Smith's prior sexual behavior. Her testimony did not explain that she vomited because it was the first time she had performed oral sex. Such testimony would open up her past experience to cross examination. Ms. Smith's simple statement that she vomited after being forced to perform oral sex at knifepoint had nothing to do with her past experience or familiarity with performing oral sex with other men. Again, the trial court's decision to limit cross examination in this area was discretionary and will not be disturbed. See State v. Krausse, supra. Ill Hudlow's Habitual Criminal Status Under RAP 13.7(b), when this court accepts a petition for review we "will review only the questions raised in . . . the petition for review and the answer". In the present case, respondent Hudlow properly raised issues at the Court of Appeals pertaining to the validity of the habitual criminal proceedings instituted against him. Specifically, he challenged the use of certain prior convictions under the-rationale of State v. Holsworth, 93 Wn.2d 148, 607 P.2d 845 (1980). The Court of Appeals, however, did not reach the issue because it reversed the trial court on another ground and vacated respondents' convictions. When the petition for review was accepted here, respondent Hudlow did not raise the issue in response to the petition for review and did not orally argue the issue before us. Since respondent Hudlow properly preserved the issue of his habitual criminal status for appeal, we believe that issue deserves appellate court consideration. In Courtright Cattle Co. v. Dolsen Co., 94 Wn.2d 645, 658-59, 619 P.2d 344 (1980), we remanded an issue not before considered by the Court of Appeals back to that court for its determination so as to completely dispose of the controversy. We believe that procedure is proper in the case before us and now remand the issue of respondent Hudlow's habitual criminal status to Division Two of the Court of Appeals for its decision. We reverse the Court of Appeals and reinstate the convictions of respondents Hudlow and Harper. With respect to respondent Hudlow's challenge to the habitual criminal proceedings instituted against him, we remand the matter to the Court of Appeals, Division Two, for its resolution of that issue. Reversed and remanded. Rosellini, Stafford, Brachtenbach, Dore, and Dim-mick, JJ., and Cunningham, J. Pro Tern., concur. U.S. Const. amend. 6 provides, in pertinent part: "In all criminal prosecutions, the accused shall enjoy the right... to be confronted with the witnesses against him; [and] to have compulsory process for obtaining witnesses in his favor . . ." Const, art. 1, § 22 provides in part: "In criminal prosecutions the accused shall have the right to . . . meet the witnesses against him face to face, [and] to have compulsory process to compel the attendance of witnesses in his own behalf..." Former RCW 9.79.150(2) provides: "Evidence of the victim's past sexual behavior including but not limited to the victim's marital history, divorce history, or general reputation for promiscuity, nonchastity, or sexual mores contrary to community standards is inadmissible on the issue of credibility and is inadmissible to prove the victim's consent except as provided in subsection (3) of this section, but when the perpetrator and the victim have engaged in sexual intercourse with each other in the past, and when the past behavior is material to the issue of consent, evidence concerning the past behavior between the perpetrator and the victim may be admissible on the issue of consent to the offense." Former RCW 9.79.150(4) provides: "Nothing in this section shall be construed to prohibit cross-examination of the victim on the issue of past sexual behavior when the prosecution presents evidence in its case in chief tending to prove the nature of the victim's past sexual behavior, but the court may require a hearing pursuant to subsection (3) of this section concerning such evidence." As of 1980, 45 states and the federal courts had adopted rape shield statutes of some kind. See Tanford & Bocchino, at 591-602. ER 403 reads as follows: "Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence."

Johnson, J. These consolidated cases present the question whether the personal belongings of nonarrested vehicle passengers are subject to search incident to the arrest of the driver. In all three cases, the Court of Appeals found the searches valid under the authority of State v. Stroud, 106 Wn.2d 144, 720 P.2d 436 (1986). We reverse. We hold the search incident to arrest exception articulated in Stroud does not automatically extend to the “private affairs” of persons who are not under arrest, including personal possessions police know or should know belong to such nonarrested individuals. Under the facts of these cases, it is undisputed police knew the items searched belonged to individuals who were not under arrest. The facts do not show, nor does the State argue, the existence of any articulable, objective suspicion that any nonarrested passenger was armed or dangerous or had secreted contraband obtained froip the arrestee. Therefore, there was no objective, lawful justification for the searches. FACTS State v. Parker Deborah Parker was a passenger in a vehicle stopped for speeding. A license check revealed the license of the driver, Tim Thomas, was revoked. Thomas was arrested, handcuffed, and placed in the back of the patrol car. The arrest process lasted approximately 15 to 20 minutes, during which period Parker remained in the front passenger seat of the vehicle. Because an open container of beer was spotted in the vehicle, officers decided to check Parker’s sobriety in order to determine whether the vehicle could be released into her custody. Parker was asked to step from the vehicle to take a Breathalyzer test. She complied. While the Breathalyzer was being administered, one of the officers noticed some cash lying on top of Parker’s purse. The officer did not immediately decide to search the purse. Instead, he went back to Parker to ask to whom the money belonged. She said it belonged to her from the sale of a car. When Parker could produce no receipt or other proof of ownership of the money, the officer went back to his patrol car and learned from Thomas that the money belonged to him from a cashed paycheck. After the officers were satisfied the money actually did belong to Thomas, they removed the purse from the vehicle and asked Parker “if there was anything else in her purse [Thomas] placed there prior to being stopped.” Transcript at 13. The officers then searched the purse, taking things out and setting them on the trunk of the vehicle as they went through it. Inside the purse was a small, two-by-three-inch snapped-shut coin purse. Inside this coin purse was a plastic baggie of methamphetamine. Parker was arrested and charged with unlawful possession of a controlled substance. Before trial, Parker moved to suppress the evidence found in her purse. At the suppression hearing the court found the ownership of the money had been resolved to the officers’ satisfaction before they searched the purse and there was no other evidentiary justification supporting the search. The court, however, found the search lawful incident to the arrest of the driver. State v. Jines Steven Jines was a passenger in a vehicle stopped for failing to signal a left turn. A license check revealed the driver, Christopher Oberst, had a suspended license. Oberst was arrested, handcuffed, and placed in the patrol car. Because Jines was not wearing his seat belt he was asked for identification, which he produced from his jacket lying on the center console between the two front seats. The officer then ordered Jines and another passenger out of the car and told them not to take anything as the officer intended to search the car. Jines complied, leaving his jacket behind. During the search of the vehicle, the officer searched through Jines’ jacket and found a small black box inside it. Inside this box the officer found methamphetamine. Jines was arrested and charged with unlawful possession of a controlled substance. Before trial, Jines moved to suppress the evidence found in his jacket. At the hearing, the trial court found the officer knew, prior to searching it, that the jacket belonged to Jines. The arresting officer also testified that, except for the seat belt infraction, he had no reason to believe Jines was violating the law. The trial court found the search lawful incident to the arrest of the driver. State v. Hunnel Anna Hunnel, along with her three small children, was a passenger in a car driven by her husband John Hunnel. The vehicle was pulled over by the local sheriff on an unrelated suspicion of a “wanted” person in the area. However, at the scene the sheriff discovered Hunnel had outstanding arrest warrants for violation of a protection order and driving under the influence. A license check also revealed Hunnel’s license was suspended. Mr. Hunnel was arrested and placed in the patrol car. After John Hunnel was arrested, the sheriff asked Anna Hunnel for identification in order to determine whether the vehicle could be released into her custody. She produced her identification from a purse at her feet on the front passenger floorboard. Thereafter, the sheriff requested Anna Hunnel exit the vehicle so he could search it. She attempted to take her purse but the sheriff ordered her to leave it in the car. She complied. The sheriff then searched through Hunnel’s purse as part of his search of the vehicle. Inside the purse he found a miniature Marlboro “cigarette pack” matchbox. Inside this matchbox he found two small baggies of methamphetamine. Anna Hunnel was arrested and charged with unlawful possession of a controlled substance. Before trial, Hunnel moved to suppress the evidence found in her purse. At the suppression hearing, the State conceded the sheriff knew the purse belonged to Ms. Hunnel before he searched it. The court found the search lawful incident to the arrest of the driver. PROCEDURAL HISTORY In each case, the Court of Appeals affirmed the validity of the searches under the authority of New York v. Belton, 453 U.S. 454, 101 S. Ct. 2860, 69 L. Ed. 2d 768 (1981) (search of vehicle passenger compartment, including all containers therein, valid incident to arrest of driver), and Stroud, 106 Wn.2d 144 (search of vehicle passenger compartment, except locked containers, valid incident to arrest of driver). See State v. Hunnel, 89 Wn. App. 638, 949 P.2d 847 (1998); State v. Parker, 88 Wn. App. 273, 944 P.2d 1081 (1997); State v. Jines, No. 20454-1-II (Wash. Ct. App. Jan. 23, 1998). We granted review and consolidated these cases in order to determine whether the lawful scope of a vehicle search incident to the arrest of the driver extends to the personal belongings of nonarrested passengers. ANALYSIS Defendants claim their right to be free from warrantless searches was violated under both the state and federal constitutions. Since we find the searches violated article I, section 7 of the state constitution, we do not decide whether the warrantless searches also violated the Fourth Amendment. See State v. Young, 123 Wn.2d 173, 188, 867 P.2d 593 (1994). Our analysis begins and ends, therefore, by examining the validity of the searches under article I, section 7 of the state constitution. Article I, Section 7 It is by now axiomatic that article I, section 7 provides greater protection to an individual’s right of privacy than that guaranteed by the Fourth Amendment. State v. Ferrier, 136 Wn.2d 103, 111, 960 P.2d 927 (1998); State v. Hendrickson, 129 Wn.2d 61, 69 n.1, 917 P.2d 563 (1996); Young, 123 Wn.2d at 180; Stroud, 106 Wn.2d at 148; State v. Williams, 102 Wn.2d 733, 741-42, 689 P.2d 1065 (1984); State v. Myrick, 102 Wn.2d 506, 510, 688 P.2d 151 (1984) (citing cases). Article I, section 7 provides: “No person shall be disturbed in his private affairs, or his home invaded, without authority of law.” This provision differs from the Fourth Amendment in that article I, section 7 “clearly recognizes an individual’s right to privacy with no express limitations.” State v. White, 97 Wn.2d 92, 110, 640 P.2d 1061 (1982). See also Ferrier, 136 Wn.2d at 111. Accordingly, while article I, section 7 necessarily encompasses those legitimate expectations of privacy protected by the Fourth Amendment, its scope is not limited to subjective expectations of privacy but, more broadly, protects “those privacy interests which citizens of this state have held, and should be entitled to hold, safe from governmental trespass absent a warrant.” Myrick, 102 Wn.2d at 511. See also State v. Mendez, 137 Wn.2d 208, 219, 970 P.2d 722 (1999); State v. Johnson, 128 Wn.2d 431, 446, 909 P.2d 293 (1996); State v. Boland, 115 Wn.2d 571, 577, 800 P.2d 1112 (1990). We have long held the right to be free from unreasonable governmental intrusion into one’s “private affairs” encompasses automobiles and their contents. See, e.g., Mendez, 137 Wn.2d at 217, 219; Hendrickson, 129 Wn.2d at 69 n.1 (citing cases); City of Seattle v. Mesiani, 110 Wn.2d 454, 456-57, 755 P.2d 775 (1988) (citing cases); State v. Kennedy, 107 Wn.2d 1, 4-5, 726 P.2d 445 (1986); State v. Gibbons, 118 Wash. 171, 187-88, 203 P. 390 (1922). More than 75 years ago, in Gibbons, we explicitly recognized the citizens of this state have a right to the privacy of their vehicles. We note that the case before us does not involve a search ... in the home of appellant; but manifestly the constitutional guaranty that “no person shall be disturbed in his private affairs, or his home invaded, without authority of law,” protected the person of appellant, and the possession of his automobile and all that was in it, while upon a public street of Ritzville, against arrest and search without authority of a warrant of arrest, or a search warrant, as fully as he would have been so protected had he and his possession been actually inside his own dwelling; that is, his “private affairs” were under the protection of this guaranty of the constitution, whether he was within his dwelling, upon the public highways, or wherever he had the right to be. Gibbons, 118 Wash. at 187-88 (quoting Wash. Const, art. I, § 7) (most emphasis added). In Mesiani, we reiterated the holding of Gibbons and subsequent cases, stating that “[f]rom the earliest days óf the automobile in this state, this court has acknowledged the privacy interest of individuals and objects in automo biles.” Mesiani, 110 Wn.2d at 456-57 (citing cases). We expressly adopted the reasoning of the United States Supreme Court into our article I, section 7 analysis: “An individual operating or traveling in an automobile does not lose all reasonable expectation of privacy simply because the automobile and its use are subject to government regulation. Automobile travel is a basic, pervasive, and often necessary mode of transportation to and from one’s home, workplace, and leisure activities. Many people spend more hours each day traveling in cars than walking on the streets. Undoubtedly, many find a greater sense of security and privacy in traveling in an automobile than they do in exposing themselves by pedestrian or other modes of travel. Were the individual subject to unfettered governmental intrusion every time he entered an automobile, the security guaranteed by the Fourth Amendment would be seriously circumscribed. ...” Mesiani, 110 Wn.2d at 457 (quoting Delaware v. Prouse, 440 U.S. 648, 662-63, 99 S. Ct. 1391, 59 L. Ed. 2d 660 (1979) (footnote omitted)). More recently, in Hendrickson, we refused to hold under article I, section 7 that a work release convict had a “diminished expectation of privacy” in his vehicle. Hendrickson, 129 Wn.2d at 71. We expressly held that any alleged subjective expectation of privacy, even if it were reduced, “does not constitute an exception to the requirement of a warrant under art. I, § 7.” Hendrickson, 129 Wn.2d at 71. Just last winter term, in Mendez, we stated that “preexisting Washington law indicates a general preference for greater privacy for automobiles and a greater protection for passengers than the Fourth Amendment . . . .” Mendez, 137 Wn.2d at 219 (emphasis added). We rejected the proposition that the authority to order a driver to remain in or exit the vehicle to ensure officer safety following a traffic stop automatically extended to passengers. Mendez, 137 Wn.2d at 220. We reasoned that to adopt “such a bright-line, categorical rule” would constitute an unreasonable intrusion into the privacy interests of passengers under article I, section 7. Mendez, 137 Wn.2d at 220. We held, therefore, that officers must “articulate an objective rationale” to support their actions with regard to a passenger in order to prevent “groundless police intrusions on passenger privacy.” Mendez, 137 Wn.2d at 220. The foregoing underscores our continued recognition of a constitutionally protected privacy interest the citizens of this state have held, and should continue to hold, in their automobiles and the contents therein. Likewise, vehicle passengers hold an independent, constitutionally protected privacy interest. This interest is not diminished merely upon stepping into an automobile with others. In the cases now before us the State argues the warrant-less searches at issue fall within the search incident to arrest exception as articulated in State v. Stroud, 106 Wn.2d 144, 720 P.2d 436 (1986). Essentially, the State argues the personal possessions of passengers are merely “containers” within the automobile and are, thus, legitimately subject to search whether or not they belong to the arrested individual. We disagree. Initially, we reiterate that “[a]ny analysis of article I, section 7 in Washington begins with the proposition that warrantless searches are unreasonable per se.” State v. White, 135 Wn.2d 761, 769, 958 P.2d 982 (1998) (citing Hendrickson, 129 Wn.2d at 70). This is a strict rule. White, 135 Wn.2d at 769. Exceptions to the warrant requirement are limited and narrowly drawn. White, 135 Wn.2d at 769; Hendrickson, 129 Wn.2d at 70-71. The State, therefore, bears a heavy burden to prove the warrantless searches at issue fall within the exception it argues for. See Johnson, 128 Wn.2d at 447. Under article I, section 7, a lawful custodial arrest is a constitutionally required prerequisite to any search incident to arrest. State v. Cyr, 40 Wn.2d 840, 843, 246 P.2d 480 (1952), overruled on other grounds by State v. Ringer, 100 Wn.2d 686, 674 P.2d 1240 (1983). It is the fact of arrest itself that provides the “authority of law” to search, therefore making the search permissible under article I, section 7. Cyr, 40 Wn.2d at 843; Stroud, 106 Wn.2d at 164 (Durham, J., concurring in the result). See also State v. Michaels, 60 Wn.2d 638, 643, 374 P.2d 989 (1962) (citing with approval State v. Cyr, 40 Wn.2d 840). Thus, while the search incident to arrest exception functions to secure officer safety and preserve evidence of the crime for which the suspect is arrested, in the absence of a lawful custodial arrest a full blown search, regardless of the exigencies, may not validly be made. See, e.g., State v. Johnson, 71 Wn.2d 239, 242, 427 P.2d 705 (1967) (lawful arrest is a prerequisite to a lawful search); State v. Miles, 29 Wn.2d 921, 933, 190 P.2d 740 (1948) (if arrest is unlawful, search is unlawful); Gibbons, 118 Wash. at 183 (search following unlawful arrest has “no lawful support as incident thereto”). It states the obvious to observe that where a person is not under arrest there can be no search incident thereto. We find the fact the defendants here were not under arrest at the time their possessions were searched determinative. In our review of our search incident to arrest jurisprudence we do not find, and the State has not cited to, a single authority for the proposition that the arrest of one person, without more, provides the authority to search another, nonarrested individual. To construe the search incident to arrest exception broadly so as to automatically authorize the search of nonarrested individuals because those individuals happen to be associated with the arrestee, or within the vicinity of the arrest, would distort the narrow limits of the exception and offend fundamental constitutional principles. The limited scope of the exception, as well as the basic proposition that constitutional rights are individually held, guides our analytical focus. Under article I, section 7, we have specifically recognized that “[r]egardless of the setting . . . ‘constitutional protections [are] possessed individually” State v. Broadnax, 98 Wn.2d 289, 296, 654 P.2d 96 (1982) (quoting Ybarra v. Illinois, 444 U.S. 85, 92, 100 S. Ct. 338, 62 L. Ed. 2d 238 (1979)) (second alteration in original). Accordingly, a person’s “mere presence” in a place validly to be searched does not justify a search of that person. Broadnax, 98 Wn.2d at 295, 301; see State v. Worth, 37 Wn. App. 889, 892, 683 P.2d 622 (1984). Merely associating with a person suspected of criminal activity “does not strip away” individual constitutional protections. Broadnax, 98 Wn.2d at 296. Thus, where officers do not have articulable suspicion that an individual is armed or dangerous and have nothing to independently connect such person to illegal activity, a search of the person is invalid under article I, section 7. See Broadnax, 98 Wn.2d at 296. The principles we adhered to in Broadnax apply with equal force in the context of automobile stops and searches. Individual constitutional rights are not extinguished by mere presence in a lawfully stopped vehicle. See, e.g., Mendez, 137 Wn.2d at 218-20 (under article I, section 7, rights of passenger are independent of driver); State v. Larson, 93 Wn.2d 638, 642-45, 611 P.2d 771 (1980) (stop of vehicle for offense committed by driver does not in and of itself reasonably provide officer with grounds to investigate passenger; in order to be valid under article I, section 7, officer must have independent basis to suspect passenger). See also United States v. Di Re, 332 U.S. 581, 587, 68 S. Ct. 222, 92 L. Ed. 210 (1948) (a person does not, “by mere presence in a suspected car, lose[ ] immunities from search of his person to which he would otherwise be entitled.”). Although we have not specifically addressed the issue under article I, section 7, we have recognized that readily recognizable personal effects are protected from search to the same extent as the person to whom they belong. See State v. Hill, 123 Wn.2d 641, 644, 647, 870 P.2d 313 (1994). See also Worth, 37 Wn. App. at 892. Fersonal items may be “so intimately connected with” an individual that a search of the items constitutes a search of the person. Hill, 123 Wn.2d at 644. Personal effects need not be worn or held to fall within the scope of protection. Worth, 37 Wn. App. at 893-94 (narrow focus on whether person is holding or wearing a personal item undercuts purpose of constitutional protection and leaves vulnerable to search readily recognizable personal effects which a person has under his or her control and seeks to preserve as private). Nevertheless, the State argues officer safety justifies the search of nonarrested passengers. However, the authority to conduct a full blown evidentiary search cannot constitutionally derive from the need to secure officer safety alone, although, indisputably, the search incident to arrest exception functions primarily to achieve this purpose. Rather, despite the inevitable danger an officer may face in the field, the authority to search following an arrest stems directly from the fact of the arrest itself and the concomitant lessening of the arrestee’s privacy interest. E.g., State v. White, 44 Wn. App. 276, 278, 722 P.2d 118 (1986) (once arrested there is a diminished expectation of privacy in the person of the arrestee). It is precisely because the privacy interest of a nonarrested individual remains largely undiminished that full blown evidentiary searches of non-arrested individuals are constitutionally invalid even where officers may legitimately fear for their safety. As the United States Supreme Court has repeatedly stated, “there is a ‘distinction in purpose, character, and extent between a search incident to an arrest and a limited search for weapons [to ensure officer safety].’ ” United States v. Robinson, 414 U.S. 218, 227, 94 S. Ct. 467, 38 L. Ed. 2d 427 (1973) (quoting Terry v. Ohio, 392 U.S. 1, 25, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968)). “[A search, incident to arrest], although justified in part by the acknowledged necessity to protect the arresting officer from assault with a concealed weapon, is also justified on other grounds, and can therefore involve a relatively extensive exploration of the person. A search for weapons in the absence of probable cause to arrest, however, must, like any other search, be strictly circumscribed by the exigencies which justify its initiation. Thus it must be limited to that which is necessary for the discovery of weapons which might be used to harm the officer or others nearby, and may realistically be characterized as something less than a ‘full’ search, even though it remains a serious intrusion. “. . . An arrest is a wholly different kind of intrusion upon individual freedom from a limited search for weapons, and the interests each is designed to serve are likewise quite different. An arrest is the initial stage of a criminal prosecution. It is intended to vindicate society’s interest in having its laws obeyed, and it is inevitably accompanied by future interference with the individual’s freedom of movement, whether or not trial or conviction ultimately follows. The protective search for weapons, on the other hand, constitutes a brief, though far from inconsiderable, intrusion upon the sanctity of the person.” Robinson, 414 U.S. at 227-28 (quoting Terry, 392 U.S. at 25-26) (citations omitted) (footnote omitted). Our article I, section 7 precedent is in accord with this analysis and approach. Despite the State’s assertion that Stroud should control, we find nothing in that decision from which to conclude the privacy rights of nonarrested vehicle occupants are categorically compromised incident to the arrest of some other vehicle occupant. In Stroud, although we agreed in principle with the United States Supreme Court that concern for officer safety and the destruction of evidence justifies a passenger compartment search following the arrest of the vehicle driver and occupants, we stated that because of the heightened privacy protections guaranteed by our state constitution, “we do not believe that these exigencies always allow a search.” Stroud, 106 Wn.2d at 151. Rather, the exigencies flowing from an arrest “must be balanced against whatever privacy interests the individual has in the articles in the car.” Stroud, 106 Wn.2d at 152. We have continued to reiterate that the purpose of the Stroud rule is to identify “a point at which privacy interests outweigh the exigencies of an arrest . . . State v. Fladebo, 113 Wn.2d 388, 395, 779 P.2d 707 (1989). Significantly, Stroud, and all our precedent following it, considered the exigencies of an arrest situation against the privacy interests of arrested individuals. Here, the items searched belonged to individuals who were not under arrest. There is simply no authority under our precedent to suggest that personal belongings clearly and closely associated with non-arrested vehicle occupants are subject to full blown police searches merely because some other occupant in the vehicle is arrested. Stroud does not stand for that proposition; Broadnax contradicts it. As such, Stroud and its progeny are neither controlling nor persuasive of the State’s position. We do not disagree with the State that under certain circumstances nonarrested individuals may pose a threat to officer safety in an arrest situation, or may frustrate the State’s interest in having its laws obeyed by secreting contraband on behalf of the arrestee. As the above discussion demonstrates, however, we engage in a delicate balancing of interests, weighing safety and evidentiary concerns against the basic notion that the people of this state enjoy a measure of privacy that is, and will forever be, unassailable. See State v. Young, 123 Wn.2d 173, 181, 867 P.2d 593 (1994) (Washington Constitution protects those privacy interests which citizens of this state have held, and should be entitled to hold, safe from governmental trespass and does not depend on subjective expectations of privacy). As against the privacy interests of a nonarrested individual, the balance has already been struck. Accordingly, while we have recognized in the context of an automobile stop that nonsuspect companions may pose a danger to officers, a generalized concern for officer safety has never justified a full search of nonarrested companions. See State v. Kennedy, 107 Wn.2d 1, 12, 726 P.2d 445 (1986). Even in the context of an automobile stop, when a person is not under arrest the scope of any search of such individual is limited to ensure officer safety only and must be supported by objective suspicions that the person searched may be armed or dangerous. See Kennedy, 107 Wn.2d at 11-13; see also State v. Hudson, 124 Wn.2d 107, 112, 874 P.2d 160 (1994). We do conclude, however, that whether or not articulable suspicion exists sufficient to justify a patdown for weapons, the circumstance of an arrest falls squarely within the rule of Mendez. Thus, a vehicle stop and arrest in and of itself provides officers an objective basis to ensure their safety by “controlling the scene,” including ordering passengers in or out of the vehicle as necessary. See State v. Mendez, 137 Wn.2d 208, 220-21, 970 P.2d 722 (1999). As to the potential loss of evidence, under the facts presented here there was no evidence to be lost. The defendants were not under arrest. Thus, without some further predicate, no evidence could lawfully be seized from them. Kennedy, 107 Wn.2d at 12. Furthermore, where individuals are arrested for driving with license suspended, there is simply no evidence of the crime to be hidden or lost. Cf. Knowles v. Iowa, 525 U.S. 113, 119 S. Ct. 484, 488, 142 L. Ed. 2d 492 (1998) (The need to discover and preserve evidence is not present where defendant was stopped for speeding. “No further evidence of excessive speed was going to be found either on the person of the offender or in the passenger compartment of the car”) (emphasis added). We hold the arrest of one or more vehicle occupants does not, without more, provide the “authority of law” under article I, section 7 of our state constitution to search other, nonarrested vehicle passengers, including personal belongings clearly associated with such nonarrested individuals. In determining whether an item within a vehicle is “clearly and closely” associated with a nonarrested passenger, we adopt the test recently enunciated by the Wyoming Supreme Court in Houghton v. State, 956 P.2d 363 (Wyo. 1998), rev’d, 526 U.S. 295, 119 S. Ct. 1297, 143 L. Ed. 2d 408 (1999). In Houghton, the Wyoming Supreme Court invalidated the search of a woman’s purse found in a vehicle where the police had probable cause to search the vehicle but did not have probable cause to believe the passenger was involved in any criminal activity. Houghton, 956 P.2d at 370. The Wyoming court adopted a straightforward rule allowing police officers to assume all containers within the vehicle may be validly searched, unless officers know or should know the container is a personal effect of a passenger who is not independently suspected of criminal activity and where there is no reason to believe contraband is concealed within the personal effect immediately prior to the search. Houghton, 956 P.2d at 370, 372. The need for a “bright-line” rule, as urged by the State, does not overcome a nonarrested individual’s privacy interest. Officers in the field routinely make often subtle factual determinations of probable cause, articulable suspicion, and the like. As the facts of these consolidated cases demonstrate, it is not overly difficult to determine to whom a personal effect belongs. Not even in Stroud did we completely adopt the Belton “bright-line rule,” finding instead that even arrested individuals have a privacy interest in locked containers that is not overcome by the exigencies surrounding an arrest. State v. Stroud, 106 Wn.2d 144, 151, 720 P.2d 436 (1986) (citing New York v. Belton, 453 U.S. 454, 458, 101 S. Ct. 2860, 69 L. Ed. 2d 768 (1981)). Significantly, the categorical rule adopted in Belton is itself premised entirely on the fact of a valid custodial arrest: [Any container found within the passenger compartment] may, of course, be searched whether it is open or closed, since the justification for the search is not that the arrestee has no privacy interest in the container, but that the lawful custodial arrest justifies the infringement of any privacy interest the arrestee may have. Belton, 453 U.S. at 461 (emphasis added). See also Stroud, 106 Wn.2d at 164 (the fact of a lawful custodial arrest provides required “authority of law” under article I, section 7 to search vehicle of arrestee) (Durham, J., concurring in the result). Thus, while a bright-line rule such as the rule in Stroud makes the police officer’s job easier, we refuse to give it “such broad application that it totally submerges the protections our state’s founders obviously had in mind when they adopted article I, section 7 of our state constitution.” State v. Johnson, 128 Wn.2d 431, 459-60, 909 P.2d 293 (1996) (Alexander, J., concurring). An individualized attention to the privacy interests of nonarrested passengers is more in line with the balancing of interests our precedent requires. Based on the foregoing, we find the searches at issue invalid. Under the facts of these cases, it is undisputed police knew the items searched belonged to individuals who were not under arrest. The facts do not show, nor does the State argue, the existence of any articulable, objective suspicion that any nonarrested passenger was armed or dangerous or had secreted contraband obtained from the arrestee. Therefore, there was no objective, lawful justification for the searches. CONCLUSION “The word ‘automobile’ is not a talisman in whose presence the Fourth Amendment fades away and disappears.” Coolidge v. New Hampshire, 403 U.S. 443, 461-62, 91 S. Ct. 2022, 29 L. Ed. 2d 564 (1971). Nor do the heightened protections of article I, section 7 fade away or disappear within the confines of an automobile. A rule that protects nonarrested, nonsuspected third parties and their recognizable personal effects against categorical searches based merely on presence in an automobile in which somebody else is arrested strikes the proper balance between the significant privacy interests of innocent third parties and the exigencies that may be faced by officers at the scene of an automobile stop and arrest. Pursuant to Stroud, officers may lawfully search a vehicle passenger compartment incident to the arrest of the driver. Pursuant to our rationale above, officers may assume all containers in the vehicle are lawfully subject to search. If, however, officers know or should know certain containers within the vehicle belong to nonarrested occupants, such containers may not be searched absent an independent, objective basis to believe the containers hold a weapon or evidence. Reversed and remanded with directions to suppress the evidence. Smith, Madsen, and Sanders, JJ., concur. The State cites the United States Supreme Court’s recent decision in Wyoming v. Houghton, 526 U.S. 295, 119 S. Ct. 1297, 143 L. Ed. 2d 408 (1999) as ad ditional authority. There, the Supreme Court held “that police officers with probable cause to search a car may inspect passengers’ belongings found in the car that are capable of concealing the object of the search.” Houghton, 526 U.S. at 307. Here, there was no probable cause to search the car, much less the individual belongings of the passengers. Thus, Houghton would not even control a Fourth Amendment analysis. Compare Knowles v. Iowa, 525 U.S. 113, 119 S. Ct. 484, 488, 142 L. Ed. 2d 492 (1998) (concern for officer safety and destruction of evidence does not alone justify full field-type search in the absence of arrest or probable cause to search). In any event, Houghton does not control the outcome under article I, section 7 and we decline to adopt its rationale. Once this court has conducted an analysis under State v. Gunwall, 106 Wn.2d 54, 720 P.2d 808, 76 A.L.R.4th 517 (1986), and has determined a provision of the state constitution independently applies to a specific legal issue, in subsequent cases it is unnecessary to repeat a Gunwall analysis of the same legal issue. State v. White, 135 Wn.2d 761, 769, 958 P.2d 982 (1998). It is already well established that article I, section 7 of our state constitution provides to individuals broader protection against search and seizure than does the Fourth Amendment. White, 135 Wn.2d at 769. Therefore, no Gunwall analysis is needed in this case because we apply established principles of state constitutional jurisprudence. See White, 135 Wn.2d at 769. For a thorough discussion of the search incident to arrest exception see State v. Ringer, 100 Wn.2d 686, 674 P.2d 1240 (1983) (tracing common law history of the exception and its development under Washington law), overruled in part on other grounds by State v. Stroud, 106 Wn.2d 144, 720 P.2d 436 (1986). While we relied on federal precedent in Broadnax, we specifically held the search at issue was invalid under article I, section 7. Broadnax, 98 Wn.2d at 296, 304. Even assuming a patdown for weapons would have been justified in these cases, the scope of the searches here was impermissible. We have repeatedly recognized that a patdown to ensure officer safety may not be turned into a cursory search for weapons or be used to search for evidence of an independent crime. Broadnax, 98 Wn.2d at 296-97; Hudson, 124 Wn.2d at 112; State v. Hobart, 94 Wn.2d 437, 447, 617 P.2d 429 (1980); State v. Allen, 93 Wn.2d 170, 172-73, 606 P.2d 1235 (1980). If there were an articulable basis to believe contraband had been hidden in the passenger’s belongings, this might provide the “further predicate” necessary to conduct a search for that contraband. See Houghton v. State, 956 P.2d 363 (Wyo. 1998) (passenger possessions may be searched where there is reason to believe contraband was concealed within the personal effect immediately prior to the search), rev’d, 526 U.S. 295, 119 S. Ct. 1297, 143 L. Ed. 2d 408 (1999). We disagree with the United States Supreme Court’s rejection of the Wyoming test. Article I, section 7 requires a particularized basis to search. Even if we did believe, which we do not, that vehicle passengers are often, although not inevitably, “engaged in a common [criminal] enterprise with the driver,” Wyoming v. Houghton, 526 U.S. at 304, we could not constitutionally adopt a rule based on the “generality” of this assumption. We agree with Justice Stevens that a search of a passenger’s purse or other personal effect is a serious intrusion. Houghton, 526 U.S. at 310 (Stevens, J., dissenting). We also agree with Justice Stevens that “a rule requiring a warrant or individualized probable cause to search passenger belongings is every bit as simple as the Court’s rule; it simply protects more privacy.” Houghton, 526 U.S. at 312 (Stevens, J., dissenting). This reasoning parallels the heightened protection of privacy under article I, section 7. Under our precedent, a passenger’s privacy interest is independent of the driver’s and is not diminished merely upon stepping into an automobile with others. The money officers saw in Ms. Parker’s purse was not contraband and did not provide cause to search.

The opinion of the court was delivered by White, J. — This is a proceeding, brought upon the relation of the appellant, for a writ of mandamus to compel the respondent, as comptroller of the city of Spokane^ to place the appellant’s name upon the city pay roll for the month of May, 1901, as corporation counsel of said city for the entire month, and to make and deliver to appellant a pay check for the salary of such officer for the full month at the rate of $200 per month. The facts, as shown by the affidavit and alternative writ, are that, by ordinance passed May 23, 1899, the salary of the corporation counsel of the city of Spokane was fixed at $200 per month. Immediately after the passage of this ordinance, A. Gr. Avery was appointed corporation counsel for the period of two years. On or about the 15th of October, 1900, Mr. Avery resigned, and the appellant was thereupon appointed and confirmed as corporation counsel of the city, to fill out the unexpired term. The appellant duly qualified and entered upon the performance of the duties of the office, and thereafter continued to perform such duties until the commencement of this proceeding, including a period covering the entire month of May, 1901. No successor to the appellant has been appointed and confirmed, and no person has qualified to perform the duties of the office since the appointment, confirmation, and qualification of appellant. Respondent is, and has been since the 17th day of May, 1901, the comptroller of the city of Spokane. By ordinance it is made his duty, as city comptroller, to certify pay rolls for official salaries fixed by charter or ordinance, and to pay such salaries by pay checks issued by him upon the proper fund of the city treasury. The charter further provides' that the salary of corporation counsel shall be paid in warrants at the end of each calendar month. The appellant duly demanded of the respondent-that he perform these duties, by certifying to a pay ■ roll showing appellant to have been cor1 poration counsel for the month .of May, 1901, and making and 'delivering to appellant a pay check for the salary for that 'month. . This the respondent has refused to do, but has prepared and certified a pay roll for the salaries of city officers fixed by charter or ordinance for the month of May, 1901, and has therein set down the name of appellant as corporation counsel for the city for the period of. twenty-one days only of said month of May, and certified that the appellant as such corporation counsel is entitled to receive as salary the sum of $135.45 only, — being the salary for twenty-one days at the rate ■of $200 per month, — and has prepared a pay check in' favor of the appellant for said sum of $135.45 only. The alternative writ having been served, the respondent appeared and demurred upon the grounds (1) that the court was without jurisdiction of the subject matter; and (2) that the affidavit and- alternative writ of mandate did not state facts sufficient to constitute a cause of action, or to entitle the relator -to any relief. This demurrer being sustained, and the relator electing to stand upon the affidavit and alternative writ, judgment of dismissal and in favor- of the respondent for costs was entered. Erom the order sustaining the demurrer and the judgment, this appeal is taken. The respondent interposes a motion to dismiss this appeal upon the ground that this court has no jurisdiction, inasmuch as the amount in controversy is the sum of $64.55; being tbe difference between the salary for the full month of May and the salary for twenty-one days of that month. “The supreme court shall have . . . appellate jurisdiction in all actions and proceedings^ excepting that its appellate jurisdiction shall not extend to civil actions at law for the recovery of money or personal property when the original amount in controversy, or the value of tbe property, does not exceed the sum of $200, unless the action involves the legality' of a' tax, impost, assessment, toll, municipal fine, or the validity of a statute. ...” § 4, art. 4, State Constitution. It will be observed that -a distinction is drawn, under this provision of the constitution, between “actions” and “civil actions at law for the recovery of money or personal property.” It may be conceded that mandamus is generally regarded as an action. It is of common-law origin and the writ of mandamus is in the nature of a common-law remedy. A judgment in a mandamus proceeding, as in case of an ordinary áction at law, is subject to review by writ of error or appeal under'like conditions as in other cases. State ex rel. Boom Co. v. Superior Court, 2 Wash. 9 (25 Pac. 1007). But while it is an action at law, within the meaning of the term .“action” as used in the constitution, it cannot be said to be “a civil action at law for the recovery of money or personal property.” These terms refer to an ordinary action where the plaintiff seeks to recover a simple money judgment, or a judgment for the recovery of personal property or its value. The remedy sought in a mandamus proceeding is of an extraordinary nature. The complainant, under our statutes, in such an action, seeks to obtain a command from a court of law directed to an inferior tribunal, corporation, board, or person, to compel the performance of an act which the law specially enjoins as a duty resulting from an office, trust, or station, or to compel the admission of a party to the use and enjoyment of a right or office to which he is entitled and from which he is unlawfully precluded by such inferior tribunal, corporation, board, or person. § 5755, Bal. Code. While the particular question here raised was not discussed, we have already entertained jurisdiction in two, if not more, similar actions. Mudgett v. Liebes, 14 Wash. 482 (45 Pac. 19) ; State ex rel. Smith v. Neal, 25 Wash. 264 (65 Pac. 188). These were actions in the nature of mandamus proceedings to compel an officer to issue city and county warrants to the relators. In the first case $83.33 was involved. In the second case less than $200 was involved. We have also held that, where a claim is allowed and a warrant is to issue for it, the one entitled to the warrant must compel the ministerial officer who is in fault to act, before he is entitled to any other remedy. Abernethy v. Town of Medical Lake, 9 Wash. 112 (37 Pac. 306). We therefore conclude that the motion to dismiss must be denied. Several questions are presented by the demurrer: Pirst, The technical objection that- mandamus is not the proper remedy. Second (and the principal question involved), That respondent’s term of office ceased immediately upon the expiration of the period of two* years from the data of Mr. Avery’s appointment; thatimmediatelyuponthetermination of the two years, and ipso facto, the appellant ceased to be an officer of the city and ceased to be entitled to any salary. ISTo question is made by respondent as to the regularity of appellant’s appointment and qualification to and for the office of corporation counsel, or as to the full performance by appellant of the duties of the office during the entire month of May, — the period for which appellant seeks to obtain the pay check. It is conceded that no successor to the appellant has been appointed and confirmed. The appellant was, during the entire month of May, 1901, corporation counsel de jure, if any person was such corporation counsel after the 21st of May, 1901; and the principal question presented upon the merits of the case is whether, under the charter of the city of Spokane, the office of corporation counsel became vacant eo instanii on the expiration of the period of two years, so that an incumbent holding over until his successor was appointed and confirmed would not he entitled to any compensation for his services, or whether the incumbent holds over until the appointment and confirmation of a successor and is entitled to his salary until the happening of that event. Third, Did the appellant have an adequate remedy at law? Fourth, Was the comptroller lawfully exercising discretion and judgment in refusing to- issue the warrant? Fifth, Was this a claim that the auditing committee created by the charter should first pass upon, before the comptroller was authorized to issue the warrant? The affidavit shows that the city of Spokane has enjoined upon the comptroller of the city the certification of a pay roll for the salaries of city officers fixed by charter or ordinance, and the issuance of a pay cheek upon the proper fund of the city treasurer for the amount of the salary; and the charter provides that the salary of corporation counsel shall he paid in warrants at the end of each calendar month. The performance of these acts is specially enjoined upon the comptroller as a duty resulting from his office, and clearly falls within the provisions of § 5755, Bal. Code. Since the relator is beneficially in terested in. the. performance of these duties, through which alone he can receive his salary, he.is clearly, under the statute, entitled to the writ prayed for to compel such performance when it is refused by the comptroller. That mandamus is the proper remedy to compel the certification of the proper pay roll and the issuance of the proper salary warrants, when the salary is fixed by law and the officer charged with the performance of such duties refuses to' perform the same, is sustained by overwhelming authority. Mr. Merrill, in his work upon Mandamus, says: “This writ is the appropriate remedy to> compel a municipal corporation, or an officer thereof, to audit the account of a public officer for his salary, or to draw a warrant therefor, or to pay such a warrant. It is considered that it would be a great hardship to compel a public officer to bring suit'for his salary. When such salary is fixed by law, it is not necessary to audit it, since the auditing officers have no discretion to allow or reject it. Some courts, ignoring the delay, expense and uncertainty as to results, have refused the writ in such cases, because the object of the writ is to obtain money, and the same object might be attained by a suit against the municipality or on the bond of the delinquent officer. Such decisions controvert the proposition, -that, when a claim has been allowed by the proper authority, the duty of an auditing officer to draw a warrant therefor is merely a ministerial duty, which will be enforced by a mandamus; and it controverts the proposition that, when accounts have been allowed by the proper officers or tribunals, the duty of payment by a public disbursing officer is merely ministerial, and that a mandamus will lie to compel the performance of such duty.” Merrill, Mandamus, § 136. See, also, Id., § 126; High, Extraordinary Legal Remedies (3d ed.), § 351. “The remedy is frequently resorted to, to compel the drawing of warrants upon treasurers for and payment by the latter of the salaries of public officers. Eor this purpose it is the peculiarly appropriate remedy.” 2 Spelling, Extraordinary Belief, § 1492. The charter of the city of Spokane, when adopted, provided that the compensation of corporation counsel should be $2,000 per annum. It further provided that this salary should, be paid in warrants at the end of each calendar month, and it is further provided that the city council by ordinance may alter the salary. An ordinance was passed under this provision-of the charter fixing the salary of corporation counsel at $2,400 per annum. It will be seen, then, that the salary was fixed by law, and in drawing a warrant therefor the comptroller was performing a merely ministerial duty. The respondent, however, contends that, since the right of relator to the relief sought depends upon his title to the office of corporation counsel, such question must necessarily be determined before his prayer can be granted, and that in a proceeding of this nature the court will not determine title to an office, and relies upon the decisions of this court in Lynde v. Dibble, 19 Wash. 328 (53 Pac. 370), and Kimball v. Olmsted, 20 Wash. 629 (56 Pac. 377). Lynde v. Dibble was a proceeding to compel the respondent to surrender to the relator the possession of the office of clerk of the municipal court of the city of Spokane. The respondent was in, possession of the office, and was denying the relator’s title. In Kimball v. Olmsted the relator had been removed from the office, and his successor appointed and inducted into office. The proceeding was. to compel the mayor and council of the city, to admit the relator to the office in question and recognize him as the legal incumbent thereof. In ■ each of these cases there was a contest between two claimants to the office. In each the relator was out of the office, and the office was filled by an incumbent claim ing title thereto. Notwithstanding the provision in the latter part of §5755, supra, we held that the relators in the cases cited-should proceed by quo warranto. In the case at bar the relator’s title to- the office comes only incidentally into question. There is no incumbent in office other than the relator himself. There is no claimant to the office, and, since it is impossible for relator to bring quo warranto against himself, the objection that quo warranto is the proper proceeding is without foundation. The present proceeding comes within the rule laid down in Williams v. Clayton, 6 Utah, 86 (21 Pac. 398, 399). It is, no doubt, true that, as a general proposition, the proceeding by quo ivarranto is the proper one in which to try the title to an office; but such trial of title, when the rule requires resort to quo warranto, means the right to the possession of the office when such possession is held by another and the jrarpose of the action is to oust the occupant. Eddy v. Kincaid, 28 Ore. 537 (41 Pac. 156) ; Harwood v. Marshall, 9 Md. 83; Merrill, Mandamus, §§ 146, 152. It is nest objected that the relator has an adequate remedy in an action at law against- the city. This proceeding is not to compel the payment of money, although tha-t may be the ultimate result, but to- compel the respondent to perform a ministerial duty imposed upon him by laV, and which is for the benefit of the relator; and, admitting that the relator might have abandoned his right to have his name inserted in the pay roll for the full month, and to have the proper pay check delivered to him, and have sued the city for the sum alleged to-be due, this would have been no remedy as against the respondent-, nor would it have afforded the same relief. The law requires the comptroller to certify to the proper pay roll, and to make out and deliver on demand to the officer a warrant in payment for his salary at the end of each calendar month. To deny the relator the right to enforce compliance with this duty would he to permit the comptroller to avoid a duty specially enjoined by law. Under the statute it is enough that the law requires the comptroller to perform these acts, and that the relator is interested in having them performed. “In order that the existence of another remedy shall constitute a bar to- relief by mandamus-, such other remedy must not only he an adequate remedy in the general sense of the term, hut it must he specific and appropriate to the circumstances of the particular case. It must he such a remedy as is calculated to afford relief upon the very subject of the controversy. For if it is not adequate to afford the party aggrieved the particular right which the law accords him, mandamus will lie, notwithstanding the existence of such other remedy. In other words, it is not merely the absence of other legal remedies, hut their inadequacy coupled with the danger of failure of justice, that would result without interference by an extraordinary remedy which usually determines the propriety of this species of relief.” Spelling, Extraordinary Belief, § 1315. See, also, Harwood v. Marshall, supra. The petition shows no refusal upon the part of the city, or the officers of the city, other than the respondent, to recognize the relator’s title to the office of corporation counsel. The city has not, so far as appears in the case, through the officers authorized to speak for it — either its mayor or common council — authorized or sanctioned the action of the comptroller. The respondent, having assumed to- take a certain position upon a question of law complicated by no dispute over questions of fact, must hear the responsibility of his position. The relief which would be afforded by an action against the city is relief against another party, is different in kind, less.speedy and complete than that afforded by the- present proceeding; and the charter of the city expressly provides that the salary shall be payable i/n warrants at the end of each calendar month. The right to sue the city, for the salary is doubtful, without first proceeding to compel the issuance of the warrant by the comptroller. As was said- by this court in Abernethy v. Town of Medical Lake, 9 Wash. 112, 114 (37 Pac. 306): “The contracting powers of the 'town 'have done all they can by the making of the contract and the allowance of the claim; it is the ministerial officers who are now in fault, and the plaintiff must move' them to' action before he is entitled to any other remedy.” The objection that thé relator should be compelled to sue the municipality, which has not questioned his right to the salary, is without force. . It is next objected that the performance of the duty imposed upon the respondent in this case requires the exercise of judgment and discretion, and' cannot, therefore, be controlled by a proceeding of this nature. The salary being’ fixed by law and payable in warrants drawn on the city treasurer and the duty of the comptroller in the premises being clearly defined by the ordinance and charter, there is no room for the exercise of such judgment or discretion as will preclude the court from compelling the performance of the duty by the writ of mandamus. The only question involved is the question presented by the charter,- — as to whether the appellant continues in office as corporation counsel until his successor is appointed and confirmed. As was said by the supreme court of Tennessee in Morley v. Power, 5 Lea, 691: “But that character of discretion only exists when the law has given the power to decide, with the intent that the decision. shall he final unless changed by appeal or review. It does not exist when the act to be done is ministerial upon a given state of facts* although the officer or tribunal or body must judge, according to their best discretion, whether the facts exist, and whether they should perform the act. For otherwise it is obvious no mandamus would ever lie in any casa” The case of State ex rel. Manix v. Auditor of Darke County, 43 Ohio St. 311 (1 N. E. 209), was an application for a writ of mandamus to compel the auditor to issue a warrant for the payment of land that had been purchased by the county for a children’s home, where the deed had been accepted, and the county had entered into possession of the land, and the county commissioners had ordered the warrant drawn for the amount of the purchase price, but had afterwards rescinded the order and directed the auditor to' withhold his warrant for the sum so allowed. The court, after holding that the order rescinding' the warrant was without authority of law, said: “It is not enough that the auditor may honestly entertain doubts concerning the propriety of the original order or the effect of the order of rescission. The right to a writ of mandamus to enforce the performance of an official act by a public officer depends upon his legal duty and not upon his doubts. Ryan v. Hoffman, 26 Ohio St. 109. If his duty is clear, its performance will not be excused by his doubts concerning it, however strong or honest they may be. It is not doubted that it is competent for an auditor to defend against an application for mandamus to' compel him to issue his warrant on the treasurer upon an allowance and order of the commissioners, by showing that the order was wholly -unauthorized, and that the commissioners had no authority to make it” So, too, in this case, we have no doubt that the comptroller could set up any facts as a defense; for instance, the removal of the officer, or that he had resigned, or any other facts to show that he was not entitled to the warrant claimed. See, also, Wood v. Strother, 76 Cal. 545 (18 Pac. 766, 9 Am. St. Rep. 249). We think, therefore, that the performance of a duty of the nature required involves no discretion which places it beyond the control of the court to enforce the performance of the duty by mandamus. The city charter created an auditing committee consisting of the mayor, president of the council, and the comptroller, and made it the duty of that committee to examine or reject or disallow all claims and demands, of whatever nature, against the city, “except salaries of city officers as fixed by this charter.” It is generally held that, where a law or ordinance fixes a salary to be paid to a public officer, it-is the same as an adjusted claim and need not be adjudicated or audited. Merrill, Mandamus, §§ 135, 105, and cases cited. The claims and demands which are to be passed upon by the auditing committee are those which are constantly arising, and which vary from time to time, the amount and nature of which are not fixed by municipal law, and which are properly subject to scrutiny and allowance before payment. The amount of the salary of a city officer, fixed by ordinance, is as certain as one fixed in express terms in the charter. Where the charter has created the office, and either provided for a salary in express terms, or for the salary to be fixed by ordinance, the salary is the salary of a city officer fixed by the authority of the charter, and there is no reason or necessity for auditing the same; and the charter does not mean that such claims shall be audited by the auditing committee. The principal question in this case is, was the appellant corporation counsel of the city of Spokane and entitled to a warrant for the salary of $200 for the calendar month ending May 31, 1901 ? Ho one to succeed him had been appointed and confirmed, and he performed the duties of the office during the entire month. Mechem states the general rule as follows, and he is sustained by the authorities : “It is usually provided by law that officers elected or appointed for a fixed term shall hold not only for that term but until their successors are elected and qualified. Where this provision is found, the office does not become vacant upon the expiration of the term if there is then no successor elected and qualified to assume it, but the present incumbent will hold until his successor is elected and qualified, even though it be beyond the term fixed by law. Where, however, no such provision is made the question of the right of the incumbent to hold over is not so clear, but the prevailing opinion in this country seems to be that, unless such holding over be expressly or impliedly prohibited, the incumbent may continue to hold until some one else is elected and qualified to assume the office. Such a rule seems to be demanded by the most obvious requirements of public policy, for without it there must frequently be cases where, from a failure to elect or a refusal or neglect to qualify, the office would be vacant and the public service entirely suspended.” Mechem, Public Officers, § 397. The superior court, of Maryland treats public officers as trustees of the public, and says: “Therefore, every office, created either by the constitution or by the laws authorized by that instrument, is a public trust created for the public benefit. Where ■ an office is of statutory creation the legislative department of the government may deem it unnecessary and may abolish it; but courts must presume that every office in existence is necessary; that the public welfare is pro moted by tbe performance of the duties attached to -it; and that those duties should be discharged, without intermission, while the office continues to exist. The office being a trust created for the public good, it follows that a cessation of the benefits derived from it ought not to be sanctioned because of a failure to make an appointment by those whose duty it is to appoint. ISTo such failure should be permitted to cause a temporary extinction of the trust To guard against this evil there is usually a provision for holding over until the appointment and qualification of a successor, but it has been held in some of the states that, in the absence of any such provision, the incumbent should hold over until another person has been appointed and qualified, and it is intimated that he may reasonably presume .that it is his duty to do so; for it must be borne in mind that an official is frequently the custodian of important books, papers, and other property, the care of which ought not to be abandoned, and which he cannot properly surrender to- any one not legally authorized to assume control. People v. Tilton, 37 Cal. 614; Kreidler v. State, 24 Ohio St. 22.” Robb v. Carter, 65 Md. 321 (4 Atl. 282, 283). This public policy is recognized in our state constitution, (§§ 2 & 3, art. 3; § 5, aft. 6; § 6, art. 27). It is the policy expressly declared by the charter of the city of Spokane. The freeholders’ .charter, adopted March 24, 1891, provided as follows: “Sec. 9. The officers of said city to be elected by said city at large; shall be the mayor, treasurer, comptroller, city assessor and city attorney.' Three councilmen shall be elected in each ward by the qualified electors therein. The corporation counsel,' the city commissioners and such other officers to- fill any office hereafter created as may be found necessary to carry out the provisions of this charter, shall be appointed by the mayor and confirmed by the city council. The city clerk shall be elected by the city council. The appointment of all other officers herein specified shall he made by the mayor, subject to confirmation by the city council. All elective officers shall hold office until their successors are elected and qualified.” Section 10 provided for the time of the election of officers, and that they should hold their office until the annual municipal election in 1892, and until their successors were elected and qualified. Section 28 provided for the election of three councilmen in each ward for the terms of one, two, and three years. Section 79 ivas as follows: “The corporation counsel shall be appointed by the mayor and confirmed by the city council, and shall hold office for one year and until his successor is duly elected and qualified. Provided, however, that he may be removed at the pleasure of the council. The corporation counsel must be an attorney of the supreme court of this state and must have been in the practice of his profession for a.t least five years.” Section 82 provided for the election of a city attorney as public prosecutor, and that he should hold his office for the term of one year and until his successor was duly elected and qualified. Section 92 provided for the appointment by the mayor and confirmation by the council of three city commissioners to' serve for a certain designated period. Section 128 provided for a board of health to be appointed by the mayor and confirmed by the council. Section 129 fixed the term of office of the board of health. Section 168 provided for the election of a city treasurer. Section 218 was as follows: “All officers elected at any general election after the election at which this charter is adopted shall hold their offices for the term of one year and until their successors are elected and qualified.” In addition to these provisions, the city charter contemplated the appointment of a chief of police and a chief of the fire department, hut made no express prolusion for the term of such officers and no provision as to the manner of their appointment, other than in § 9, supra. It was further provided that, the board of health should appoint and remove, by and with the consent of the city council, a health officer; and his term of office was not otherwise prescribed. It will be noted that the charter thus contemplated the election of fifteen conncilmen, the mayor, treasurer, city assessor, and city attorney, — nineteen officers in all, — and the appointment of the corporation counsel, three city commissioners, chief of police, chief of the fire department, three members of the board of health, and a health officer, — ten appointive officers. It is expressly provided in §§ 9 and 218 that the elective officers shall hold until their successors are elected and qualified. It is further expressly provided that the city attorney, who was an elective officer, and therefore covered by the provisions of §§ 9 and 218, should hold his office for one year and until his successor was elected and qualified. It is expressly provided in § 79 that the corporation counsel shall hold his office for the term of one year and until his successor is elected and qualified. The provisions for the appointment of a city commissioner and the provision prescribing the term of office of the members of the board of health did not contain a hold-over provision, and no term of office was fixed for the chief of police, chief of the fire department, or health officer. In addition to the express provisions relative to the specific officers mentioned, the charter contained the following’: “Sec. 16. The terms of all officers not herein otherwise provided shall cease upon the tenth day after the first Tuesday in May, blit ail officers shall hold their offices until their 'successors are elected or appointed/’ The term “elected or appointed,” as used in this section, means selected in the manner provided by law to fill the office, and, when a confirmation is necessary by the city council, the appointment is not completed until such confirmation. The officer can then be said to have been appointed. Mechem, Public Officers, § 114. This section is a general section, and must be construed in connection with the specific provisions relative to the individual offices. The first clause of the section, by the reference to the terms of all officers not herein otherwise provided, is restricted in its application and fixes the date of the expiration of the term of such officers only as are “not herein otherwise provided.” Where there is an express provision fixing the termination of the term at any other date, this first clause of § 16 is inapplicable. The second clause of the section, however, is without such restriction. The words “all officers” in that clause are unlimited; and the intention to make the section applicable to all cases is rendered clear by the omission in the second clause of the -words “not herein otherwise provided,” by which the words “all officers” are modified in the first clause, and the use of the disjunctive “but” to connect the two clauses. The second clause must, be construed precisely as if it read, “All officers whether herein otherwise provided or not shall hold their offices until their successors are elected or appointed.” That this is the true interpretation of § 3 6 is made manifest by the use of the term “elected or appointed.” It had been in the charter elsewhere provided that all elective officers should hold office until their successors were elected and qualified, and, since the particular sections of the charter providing for the elective officers also provided that they should hold office until their successors -were elected and qualified, the second clause of § 16, providing for all officers elected, necessarily included the same officers, although they were elsewhere otherwise provided for. The provision in the second clause of § 16 cannot be given a more restricted, limited, or qualified application when referring to appointive officers than it has when referring to elective officers. It relates to and controls the term of office of corporation counsel, notwithstanding there was an express provision that he should hold office until his successor was duly elected and qualified, quite as much as it does to the terms of the city commissioners, board of health, or other appointive officers, concerning whom there was no express provision for holding over elsewhere given, and quite as much as it does to the city attorney, mayor, treasurer, comptroller, and other elective officers, whose terms of office were elsewhere expressly made to continue until their successors were elected and qualified. ' Any other construction would require the court to say that the words “all officers elected or appointed” did not mean all officers elected or appointed, but meant none of the elective; and part only of the appointive, officers. We conclude that § 16 means precisely what -it says, — that all officers, elective and appointive, should hold over until their successors were elected or appointed. It declared the fixed policy of the city that there should be no interregnum between the term of one of the officers and the induction of his successor; that there should, under no circumstances, where it could be avoided, be an office without an incumbent to protect the public interests. At the election held May 2, 1893, § 19 of the charter was amended to read as follows: “The corporation counsel shall be appointed by the mayor and confirmed by the city council, and shall hold office for the term of one year, and until his successor is duly elected and qualified. The corporation counsel must he an attorney of the supreme court of this state, and must have been in practice of his profession for at least five years. The corporation counsel may be removed upon recommendation of the mayor, by a majority vote of all the members of the city council, or may be removed by the vote of two-thirds of the members of the council after charges have been preferred. The corporation counsel shall give a sufficient bond to the city in the sum of five thousand dollars conditioned for the faithful performance of his duties.” Sections 9 and 78 of the charter also were amended, and § 82 was repealed. The effect of these amendments was to abolish the offices of city attorney and assessor. The amendment to § 79 authorized the removal of the corporation counsel, upon recommendation of the mayor, by a majority vote of all the members of the city council, or by the vote of two-thirds of the city council after charges had been preferred. It is clear that none of these changes in any wise affect the construction to be placed upon §§ 9, 16, 79 and 218, as to the tenure of office of the various officers piwided for. The provision in §§ 9 and 218, that all elective officers shall hold office until their successors are elected and qualified remained as before, and must receive the same construction. Section 16 remained intact and continued to provide that all officers, whether otherwise in the charter provided for or not, should hold office until their successors were elected or appointed, and still included within its terms the elective officers and corporation counsel otherwise provided for in the charter and the appointive officers. The next amendment to’ the charter was adopted May 7, 1895. Section 9 was amended to read as follows: “Sec. 9.- The officers of said city to be elected by said city at large shall be the mayor, treasurer and comptroller who shall each hold their office for the term of two years from and after the tenth day after the first Tuesday in May, A. D. 1895, and until their successors are elected and qualified. Two councilmen shall be elected in each ward. The corporation counsel, the city commissioners and such other officers now existing and such other officers as may be necessary to fill any office hereafter created, to carry out the provisions of this charter, shall be appointed by the mayor subject to confirmation by the city council. The city clerk shall be elected by the city council. The appointment of all other officers not herein specified shall be made by the mayor, subject to confirmation by the city council. The corporation counsel shall hold office for the term of two years, and all of section 79 in conflict with this section is hereby repealed. All elective officers shall hold office until their successors are elected and qualified; provided, the city council may by ordinance, two-thirds voting therefor, authorize the corporation counsel to appoint one or more assistants, whenever the interests of the city demand such appointment, and provided that section 81 of article V of the freeholders’ charter adopted March 24-, A. D. 1891, be and the same is hereby repealed.” ATo change was made in § 16 or in § 79 or § 218, except such as resulted by necessary implication from the adoption of the amendment to § 9 making it read as above stated. Other sections were at the same time amended. Section 28, as amended, provided for the election of the councilmen, etc. The first thing to be noticed is that § 9, as now amended, declares that the mayor, treasurer, and comptroller shall each hold office for the term of two years. It will be noticed that this change, by necessary implication, repealed the provision of § 218 that these officers should hold office for the term of one year. The term of office of the councilmen was also altered to two years. In conformity with these two changes in the terms of office of the mayor, etc., the term of office of the corporation counsel was modified by the following provision : “The corporation counsel shall hold office for the term of two years and all of section 79 in conflict with this section is hereby repealed.” The clear purpose of the amendment, so far as it related to the mayor, treasurer, and comptroller, was to enlarge the term of this office to two- years from and after the date mentioned. That being done, it ivas eminently proper that the term of the corporation counsel should be increased to the same period, and it is clear that this ivas the whole object of the amendment relative to the term of that officer. The only portion of § 9, as amended, which relates to- the term -of the corporation counsel, and which can hy any construction be held to conflict with § 79, is the provision that the corporation counsel shall hold office for the term of two years. We have seen that- the rule of law is that an officer shall hold office until his successor is appointed and qualified, unless by the language of the statute such holding over is expressly or by clear implication prohibited; and the language of §79, even if we construe the amendment as abrogating the clause, “and until his successor is duly elected and qualified,” fails to lirohibit, either expressly or impliedly, the holding over of the corporation counsel. It is to- he noted, in determining the extent and effect of the repealing clause of § 9 as amended, that no- reference to or amendment, of § 16 is made or suggested. That section, with ita declaration of the settled policy of the city that there shall he no- vacancy in office hy reason of a failure to elect or appoint and confirm a successor to any office, remains intact- Its construction remains as it had been from the first, and its unchanged continuance in the charter negatives the- idea that the amendment to- § 9 repealing a portion of § 79 was intended to affect in any way the right and duty of the corporation counsel to hold over until his successor was appointed. Any other construction requires the court to hold that by the express repeal of a portion of § 79 the last clause of § 16 was impliedly repealed, although no mention of that section, or of any intent to change or modify its provisions, is suggested. Such a construction is not permissible. The court is bound to presume that the amendment adopted in May, 1895, was adopted with deliberation, and with full knowledge of all existing charter provisions upon the same subject. It is but reasonable to presume that, if it was the purpose to prohibit by this amendment the holding over of the corporation counsel, such intention would have been clearly expressed, and an express repeal of so' much of § 16 as conflicted with that intention would have been coupled with the express repeal of the portion of § 79. By the charter the corporation counsel is declared to be the law department of the city. This is another reason for holding that he remains in office until his successor is appointed, for it certainly was never intended that a department, of the city government should not be continuous. We therefore conclude that the appellant rightfully held the office of corporation counsel of the city of Spokane, under the allegations of the affidavit, which are admitted by the demurrer, during the entire month of May, 1901, and was entitled to his warrant for that month. The court below should have overruled the demurrer. The judgment is reversed and the cause remanded for further proceedings in accordance with this opinion. Be avis, O. J., and Anders, . Mount and Hadley, JJ., concur. Fullerton, J., concurs in the result.

Durham, J. Deborah Riker raised the defense of duress to charges of delivery and possession of cocaine. She claimed that a police informant, Rupert Burke, coerced her into the crime with verbal threats. She also contended that her history as a battered woman in other relationships should have been made known to the jury, and she offered the testimony of an expert on the subject. The trial court instructed the jury on duress and allowed Riker to make a brief statement to the jury about her earlier batterings. However, the trial court disallowed the testimony of the expert witness. Riker claims that ruling was erroneous and also questions the trial court’s instructions on the burden of proof. We affirm. When raising a duress defense, the defendant admits the truth of the State’s allegations, but contends that her actions should be excused. We will begin by relating the State’s version of these events. In 1987, police officer John Pritchard and Rupert Burke, a paid police informant, were posing as marijuana growers looking to buy illegal guns. During the course of that investigation, Burke met the defendant’s sister, Suzanna Rohrer. On June 16, 1987, Rohrer set up a cocaine deal with Riker. Burke and Rohrer drove to Riker’s house where Burke observed the two women measuring out approximately an eighth of an ounce of cocaine (an "eightball”) on a triple beam scale. The defendant commented that the cocaine was from the bottom of a kilogram bag. Burke paid Riker $250 for the cocaine, and she told Burke that he could call her directly if he wanted more cocaine. She gave him her phone number. On June 18, 1987, Burke, with three officers present, called Riker from a pay phone to purchase more cocaine. They met at a truck stop, where Riker delivered another eightball of cocaine in exchange for $250. According to Burke, Riker also offered to deliver larger quantities of cocaine in the future. A few days later, Burke met with Riker again at her house to discuss the sale price of a pound of cocaine. They agreed on $18,000. Riker said that her cocaine supplier was named "Bill”. On June 25,1987, Riker invited Burke and Pritchard to her house. When they arrived, Burke went inside the house while Pritchard remained in the car. Riker delivered a sixteenth of an ounce of cocaine to Burke in exchange for $125. The defendant then went outside and was introduced to Pritchard, who posed as a marijuana runner. Pritchard testified that Riker told him that she had done pound deals before, and that she wanted to go back to dealing pounds. The final agreement was that Burke would meet the defendant at the SeaTac Mall parking lot and exchange a pound of cocaine for $18,000. On July 16, 1987, Burke went to the mall with the money. At about 1:15 p.m., Riker arrived at the mall. They entered the mall through a door near where Burke was parked, and then exited after a few minutes. About 5 minutes later, a pickup truck pulled up to Burke’s car. The man introduced himself as "Bill”. Burke left with Bill in the truck. A third man entered the truck and showed Burke the pound of cocaine, and they then drove back to Burke’s car in order to count the money. At this point, Burke signaled to the police and both men were arrested. Riker was arrested that evening. A subsequent search of her home disclosed an O’Haus Triple Beam scale in the bedroom closet, a .22-caliber pistol, $1,400 in cash and some food stamps. Also recovered was a "bullet”, a device used to inhale cocaine, and a small amount of marijuana. No cocaine was found in the residence. While Riker agrees with most of the facts as stated above, she claims that the tale is not so simple. Rather, she denies any previous involvement with cocaine, and states that she participated in these events only because of the pressure exerted on her by the informant, Rupert Burke. Although she was unable to testify to any explicit threats by Burke, she claims that her previous history of abuse has -left her a "battered woman” and affected her ability to resist the alleged coercion. Briefly, her testimony is as follows. Testimony of Deborah Riker Riker first met Burke in the spring of 1987 at her sister’s house. At the time, she thought that Burke was involved with a marijuana growing organization and that he was emotionally involved with her sister. Riker’s testimony was vague as to the threats employed by Burke. She testified that once, Burke forced her sister to give Riker some rings in exchange for $20 to buy cocaine. Riker also testified that, according to her sister, Burke had "pushed [Rohrer] against the wall once . . . and then verbally he [Burke] was abusing her”. Report of Proceedings (RP), at 591. Riker stated that Burke threatened that Rohrer would "more or less . . . sufferO the consequences” if Riker did not obtain cocaine for him. RP, at 591. Riker contends that she participated in the first cocaine sale only because Burke threatened to harm her sister unless she got cocaine. Riker stated that, although she has never used or dealt drugs, she was able to obtain an eighth of an ounce of cocaine on credit quickly from her ex-husband’s former prison cellmate, Bill Smith. Riker testified that Burke later called her to demand more cocaine. She said that she tried to resist, but that he told her, "Well, you will know the consequences.” RP, at 599. She believed that the consequences would be physical harm to her or her sister. However, she also testified that she had never seen any bruises on her sister, that Burke had never hit Riker, and that Burke had never made his threat more specific. Riker also testified that Burke coerced her into selling larger amounts of cocaine with the statement, "You will know the consequences.” RP, at 607. Riker denied that she had sold pounds before but admitted making arrangements for the pound deal. She claimed that she was only at the mall on July 16 to go shopping. Finally, Riker testified regarding her history of abusive relationships to support her duress defense. The trial court ruled that she could present this testimony, but not in undue detail. Riker claimed that she had been physically and sexually abused in numerous relationships since she was young, most recently a little over a year before she met Burke. She stated that her abusive relationships played a part in her fear of Burke, and that she believed that Burke would hurt her or her sister if she did not comply with his requests. Expert Testimony on Battered Woman Syndrome As an additional part of her defense, Riker attempted to introduce the testimony of Karil Klingbeil, an expert on the battered woman syndrome. In her offer of proof, Klingbeil testified that battered woman syndrome is generally considered a subset of post-traumatic stress syndrome. Klingbeil considered the relationship and the continuum of violence to be a very important aspect in arriving at a diagnosis that a person suffers from the battered woman syndrome. Klingbeil also described some of the behavioral characteristics that normally accompany the battered woman syndrome. For instance, she testified that such women usually exhibit "learned helplessness”. She explained that such a condition occurs when the woman is subjected to "repeated threats, fears, coercion, physical battering episodes, most of which are predictable” such that she comes to feel she has no options. RP, at 536-37. Klingbeil also testified that, in her opinion, Riker was a battered woman in June and July of 1987. She baséd her opinion on Riker’s history of abusive relationships with the significant men in her life and stated that Riker’s association with Burke could not be separated out from her prior relationships. However, Klingbeil admitted that use of the battered woman syndrome in a case where there was not an intimate relationship between the batterer and the victim was novel, and that she could not cite any studies applicable to this situation. Following this offer of proof, the trial court ruled that the testimony was inadmissible. At the close of the trial, the court took exceptions from counsel as to the jury instructions. The prosecutor had no objections to an instruction on duress. Both the State and the defendant agreed with the court’s proposal not to instruct the jury regarding-the applicable burden of proof on the duress defense. However, during deliberations, in response to a question from the jury, the court instructed the jury that the defendant had the burden of proving duress by a preponderance of the evidence. The jury found Riker guilty on all four counts. Riker received a sentence at the lowest end of the standard range—46 months—on each count, to be served concurrently. Riker appealed to the Court of Appeals and the case was transferred to this court. Exclusion of Expert Testimony Riker relied on the theory of duress to excuse her actions. The elements of duress are: (a) The actor participated in the crime under compulsion by another who by threat or use of force created an apprehension in the mind of the actor that in case of refusal he or another would be liable to immediate death or immediate grievous bodily injury; and (b) That such apprehension was reasonable upon the part of the actor; and (c) That the actor would not have participated in the crime except for the duress involved. RCW 9A.16.060(1). Riker offered Dr. Klingbeil’s expert testimony on the battered woman syndrome to support her duress defense; specifically, to show that her apprehension of immediate harm from Burke was reasonable. The trial court excluded the testimony because it "would not be helpful and is not needed in this defense”. RP, at 572. The battered woman syndrome is a collection of behavioral and psychological characteristics exhibited by victims of a prolonged, repetitive pattern of physical and emotional abuse at the hands of their partners. United States v. Johnson, 956 F.2d 894, 899, opinion supplemented on denial of rehearing sub nom. United States v. Emilio, 969 F.2d 849 (9th Cir. 1992); RP, at 530. See generally Lenore E. Walker, The Battered Woman Syndrome (1984). It is consid ered a subset of post-traumatic stress disorder, which, is "an anxiety-related disorder which occurs in response to traumatic events outside the normal range of human experience”. State v. Janes, 121 Wn.2d 220, 233, 850 P.2d 495 (1993). We have previously admitted expert testimony on the battered person syndrome to show how severe abuse within the context of a battering relationship affects the battered person’s perceptions and reactions in ways not immediately understandable to the average juror. See Janes, at 236; State v. Ciskie, 110 Wn.2d 263, 271-74, 751 P.2d 1165 (1988); State v. Allery, 101 Wn.2d 591, 596-98, 682 P.2d 312 (1984). The battered person syndrome is admitted in self-defense cases to illustrate and explain the "reasonableness” of the defendant’s actions. Allery, at 596-98. The admissibility of expert testimony on the battered person syndrome to explain the defendant’s actions outside of a battering relationship is a matter of first impression in this jurisdiction. Given the current state of scientific acceptance, we hold that the testimony was properly rejected. The admission of scientific testimony involves two related inquiries, each governed by separate standards. First, has the scientific theory or principle from which the evidence is derived garnered general acceptance in the relevant scientific community under the standard of Frye v. United States, 293 F. 1013, 34 A.L.R. 145 (D.C. Cir. 1923)? Second, is the expert testimony properly admissible under ER 702? Janes, at 232; State v. Cauthron, 120 Wn.2d 879, 885, 846 P.2d 502 (1993). In examining the Frye question, we look to see: (1) whether the underlying theory is generally accepted in the scientific community and (2) whether there are techniques, experiments, or studies utilizing that theory which are capable of producing reliable results and are generally accepted in the scientific community. Cauthron, at 888-89. Under the Frye standard, our task is not to determine if the scientific theory underlying the proposed testimony is correct; rather, we look to see whether it has achieved general acceptance in the appropriate scientific community. Cauthron, at 887. "The core concern of Frye is only whether the evidence being offered is based on established scientific methodology. This involves both an accepted theory and a valid techñique to implement that theory.” Cauthron, at 889. Applying these standards to the case before us, we do not question the general acceptance of the battered person syndrome theory. See Janes, at 234-36; State v. Ciskie, supra; State v. Allery, supra. Rather, our concern here involves the second part of the Frye test. Heretofore, the syndrome has been admitted only in cases in which the batterer and the victim have developed a strong relationship, usually over a period of years. See Janes, at 223 (surrogate father/son relationship); Ciskie, at 265 (2-year romantic relationship); Allery, at 592 (husband/wife relationship). The context in which the defense is raised here is entirely different. The defendant’s relationship to the person whom she claims coerced her was brief, business-oriented, and without any history of physical abuse. "[Scientific validity for one purpose is not necessarily scientific validity for other, unrelated purposes”. Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 576, 125 L. Ed. 2d 469, 113 S. Ct. 2786, 2796 (1993). The absence of any studies to support the extension of the battered woman syndrome to these facts is troubling. Throughout her testimony, Dr. Klingbeil emphasized the importance of the relationship between the batterer and the victim in battered person cases, and how the syndrome helps to explain the victim’s actions within such a relation ship. She agreed that any attempt to explain the effect of such batterings on a victim’s interactions with nonbatterers outside of the battering relationship would be a departure from the "classic” battered woman syndrome: Q: And as well as when looking in terms of what they [battered women] would perceive as a person was making threats toward them, they would feel more endangered because of the experience that they have had with this person? A: The repetitive nature of it, yes, that’s true. Q: That’s a fairly important aspect of the battered woman’s syndrome; is that a fair statement? A: Well, learned helplessness is not universally found in all battered women . . . Q: Now, this situation is quite a bit different than the classic situation? A: Yes, it’s certainly a departure from the classic. Q: And the reason why it’s a departure is? A: Well, number one, there is not a homicide here, so we don’t have a murder and we don’t have a woman defending herself against the threat of being killed. Q: But why else would it be a departure in your opinion? A: Well, I think it’s an extension of the use of the battered woman syndrome. . . . Q: The battered woman syndrome in the classic battered woman’s syndrome, the testimony has been admitted it generally is in response to something, would you agree, more in terms of either inaction or responding to defend themselves, it generally — A: Flight or fight[.] Q: Flight or fight. It generally does not involve a situation where [a battered woman has] engaged in affirmative conduct such as going out and committing crimes? A: You use the word "generally,” so I guess I would have to agree with you. RP, at 549-50, 552. Significantly, Dr. Klingbeil agreed that the fear a battered woman would have of refusing the requests of her abuser would be substantially different from the fear she would ex-. perience if the same requests came from a stranger. Later, Dr. Klingbeil was asked about the scientific verification of this extension of the battered woman syndrome: Q: . . .What studies have been done regarding that specific area? What cases have you evaluated which are exactly like this or very similar? A: Well, as a matter of fact, there aren’t a lot of similar cases that I have been involved in. As I explained to you earlier, this is a fairly recent use of the battered woman syndrome being used throughout the country and so there has not been lots of studies on that. Q: . . . but would it be safe to say there has not been enough studies done where it is generally accepted within the field? A: Actually I don’t know that I could answer that question. Q: You would agree that this is somewhat and excuse my phrasing, somewhat of a novel use of the battered woman’s syndrome? A: Yes, it is more an extension as I referred to it. Q: Did you rely on any literature when coming to your opinion in this case? A: Well, the issue of fear and its definition and intimidation, duress are all found in the literature . . ..It can be teased out of the literature. Q: You have not yourself done any studies similar to this one? A: I have not done any studies just on the use of battered woman’s syndrome without a homicide case, that is correct. RP, at 553-55. Prom Dr. Klingbeil’s own testimony, we are unable to conclude that this extension of battered person principles has achieved general acceptance in the appropriate scientific community. This conclusion is bolstered by our own survey of available literature and other cases, none of which appear to lend significant support to the application of such principles in this case. See, e.g., Lenore E. Walker, The Battered Woman xiv (1979) (studying effects of battering only in the context of a relationship with husband or lover); Lenore E. Walker, The Battered Woman Syndrome (1984) (describing effects of battering only in context of relationship with husband or lover); Lenore E. Walker, Battered Women Syndrome and Self-Defense, 6 Notre Dame J.L. Ethics & Pub. Pol’y 321 (1992) (exploring use of syndrome to explain criminal acts committed due to duress from battering partner). Indeed, we are unaware of any reported decisions which have admitted expert testimony on this syndrome outside of the context of a relationship between the batterer and the victim. The dissent is similarly unable to provide such authority. Dr. Lenore Walker, the preeminent authority on the battered woman syndrome, limits her own analysis to the following scenario: we consider a woman to be battered if she is subjected repeatedly to coercive behavior (physical, sexual, and/or psychological) by a man attempting to force her to do what he wants her to do, regardless of her own desires, rights, or best interests; if she is intimately involved with this man [but not] necessarily married, although she often is; and if, as a couple, they have experienced at least two acute battering incidents, often going through the Cycle of Violence at least twice. (Italics ours.) Lenore E. Walker, Terrifying Love 102 (1989). We find that use of battered woman syndrome to explain behaviors outside of the context described above has not yet achieved the general scientific acceptance necessary under Frye. Specifically, we find that there have not been sufficient studies of the application of the general principles comprising the battered woman syndrome to the precise context here — a non-battering, non-intimate relationship — to warrant acceptance of the testimony in this case. The fundamental flaw in the dissent’s analysis of this issue is its failure to consider the second prong of the Frye inquiry. As recently noted by the United States Supreme Court, "scientists typically distinguish between 'validity’ (does the principle support what it purports to show?) and 'reliability’ (does application of the principle produce consistent results?).” Daubert, 113 S. Ct. at 2795 n.9. Similarly, the gatekeeping function of Frye requires both an accepted theory and a reliable method of applying that theory to the facts of the case. Without studies documenting the effect, if any, that prior battering relationships will have on a person’s functions and reactions outside of those relationships, the expert’s opinion amounts to no more than an unsupported guess. The trial court also excluded the expert testimony as not being helpful to the jury under ER 702, which provides that: If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise. ER 702. Admissibility under this rule hinges on two separate determinations: (1) Does the witness qualify as an expert and (2) Would that expert’s testimony be helpful to the trier of fact? Cauthron, 120 Wn.2d at 890. The first part of this inquiry was never at issue since the parties stipulated at trial that Dr. Klingbeil is an expert on the battered woman syndrome. This court has similarly accepted her testimony in numerous cases. See Allery, 101 Wn.2d at 595; State v. Kelly, 102 Wn.2d 188, 685 P.2d 564 (1984); Ciskie, 110 Wn.2d at 271. Expert testimony will be helpful to the jury only if its relevance has been established. State v. Petrich, 101 Wn.2d 566, 575, 683 P.2d 173 (1984); State v. Hanson, 58 Wn. App. 504, 508, 793 P.2d 1001, review denied, 115 Wn.2d 1033 (1990). Helpfulness and relevancy are intricately intertwined: The helpfulness test subsumes a relevancy analysis. In making its determination, the court must proceed on a case-by-case basis. Its conclusions will depend on (1) the court’s evaluation of the state of knowledge presently existing about the subject of the proposed testimony and (2) on the court’s appraisal of the facts of the case. State v. Reynolds, 235 Neb. 662, 683, 457 N.W.2d 405, 419 (1990) (quoting 3 Jack B. Weinstein & Margaret A. Berger, Evidence 702-18 (1988)). Here, the expert testimony was offered to show that Riker’s history of abuse built a cumula tive patina of fear which resulted in her inability to resist or escape Burke’s alleged coercion. As explained above, however, there was an inadequate foundation for establishing the probative value of the battered person syndrome outside of a battering relationship. Riker and Burke were passing acquaintances whose limited contacts occurred mainly by telephone and over only a brief period of time. There was, thus, an insufficient basis established for use of the battered person syndrome in this unique set of circumstances. Exclusion of Dr. Klingbeil’s testimony in this case also accords with the law’s traditional skepticism regarding the defense of duress. Washington’s duress statute itself reflects our reluctance to allow even the abnormal stresses of life to provide a basis for the defense. Unlike self-defense, which only requires an apprehension of "imminent” danger, our duress statute requires an apprehension of "immediate” harm. Compare RCW 9A.16.050 (self-defense) with RCW 9A.16.060 (duress). See also Janes, at 241 (pointing out the difference between "imminent” and "immediate”). The defense of duress is also unavailable to defend against a charge of murder or manslaughter. RCW 9A.16.060(2). Whereas someone who acts in self-defense acts against the very person pressuring him or her, an actor who successfully raises a duress defense is freed from criminal liability for harm caused to an innocent third party. The more stringent requirements for the duress defense are a result of the more socially harmful outcome allowed by this defense, and reflect society’s conclusion that, as a matter of public policy, the defense should be limited. Hence, we hold that, under the facts of this case, the trial court did not abuse its discretion in excluding expert testimony on the battered woman syndrome. Burden of Proof for Duress The trial court instructed the jury that the defendant had the burden of proving duress by a preponderance of the evidence. Although both Riker and the State agree that she had the burden of proof, Riker argues that she had to prove the defense only to the extent that it created a reasonable doubt in the minds of the jurors as to her guilt. This, she argues, is a lower standard than "preponderance of the evidence” and the failure to specify the proper burden necessitates a new trial. Duress is an affirmative defense. State v. Razey, 54 Wn.2d 422, 426-27, 341 P.2d 149 (1959). Normally, affirmative defenses must be proved by the defendant by a preponderance of the evidence. State v. Camara, 113 Wn.2d 631, 639-40, 781 P.2d 483 (1989) (consent defense to rape); State v. Rice, 102 Wn.2d 120, 122-26, 683 P.2d 199 (1984) (lack of knowledge defense to accomplice liability); State v. Moses, 79 Wn.2d 104, 110, 483 P.2d 832 (1971) (treaty exemption defense to violation of fishing laws), cert. denied, 406 U.S. 910 (1972); State v. Mays, 65 Wn.2d 58, 68, 395 P.2d 758 (1964) (insanity defense), cert. denied, 380 U.S. 953 (1965); State v. Knapp, 54 Wn. App. 314, 320-22, 773 P.2d 134 ("unwitting possession” defense), review denied, 113 Wn.2d 1022 (1989); State v. Gilcrist, 25 Wn. App. 327, 328-29, 606 P.2d 716 (1980) (involuntary intoxication defense). This is so because generally, affirmative defenses are uniquely within the defendant’s knowledge and ability to establish. Knapp, at 320-22. Nevertheless, in the context of duress, we have previously stated that the defendant need only prove the defense "to the extent of creating a reasonable doubt in the minds of the jurors as to the [defendant’s] guilt . . ..” State v. Bromley, 72 Wn.2d 150, 155, 432 P.2d 568 (1967). Riker contends that the trial court, by instructing the jury that the duress defense must be proved by a preponderance of the evidence, placed upon her a higher burden than that called for in Bromley. However, upon close examination, we do not think that the burden described by the trial court is at all dissimilar from that enunciated in Bromley. The burden of proof described in Bromley is perplexing at best. The two cases upon which it relied involved alibi defenses. State v. Pistona, 127 Wash. 171, 219 P. 859 (1923); State v. Rosi, 120 Wash. 514, 208 P. 15 (1922). An alibi defense denies that the defendant committed the crime. State v. Johnson, 19 Wn. App. 200, 205, 574 P.2d 741 (1978). As such, an alibi defense negates an element of the crime, making it proper to require that the defendant prove the defense only to the extent that it creates a reasonable doubt as to his or her guilt. A successful alibi will make it impossible for the State to prove the defendant guilty beyond a reasonable doubt. In contrast, a defense of duress admits that the defendant committed the unlawful act, but pleads an excuse for doing so. See State v. Russell, 47 Wn. App. 848, 853, 737 P.2d 698, review denied, 108 Wn.2d 1032 (1987). The duress defense, unlike self-defense or alibi, does not negate an element of an offense, but pardons the conduct even though it violates the literal language of the law. State v. Peters, 47 Wn. App. 854, 859, 737 P.2d 693, review denied, 108 Wn.2d 1032 (1987); United States v. Johnson, 956 F.2d 894, 897-98, opinion supplemented on denial of rehearing sub nom. United States v. Emilio, 969 F.2d 849 (9th Cir. 1992). See also Paul H. Robinson, Criminal Law Defenses: A Systemic Analysis, 82 Colum. L. Rev. 199, 225 (1982) (noting that a duress defense recognizes that the conduct was intentional, but is excused because of a defect in control). A successful duress defense does not create a reasonable doubt that the defendant did the crime charged, but rather condones the defendant’s admittedly unlawful conduct. Any burden of proof for duress which literally relies on the ability of the defendant to create a reasonable doubt would therefore be impossible to meet, since a duress defense necessarily allows for no doubt that the defendant did the acts charged. The language in Bromley is admittedly confusing. In attempting to establish an evidentiary threshold, the bar was placed too high. Generally, an affirmative defense which does not negate an element of the crime charged, but only excuses the conduct, should be proved by a preponderance of the evidence. Rice, 102 Wn.2d at 124-26; see also State v. Box, 109 Wn.2d 320, 323-30, 745 P.2d 23 (1987) (discussing the differences between defenses which negate an element of the crime and those that only excuse the crime). The only logical reading of Bromley is that, as with most affirmative defenses which do not negate an element of the crime, the defendant must prove duress by a prepon derance of the evidence. Thus, we affirm the trial court’s instruction to the jury. Other Claimed Errors The defendant raises four additional arguments. After reviewing each of these arguments, we conclude that none have merit. First, Riker contends that the trial court erred in limiting the scope of her testimony regarding her history of abusive relationships. The trial court permitted Riker to testify as to her past abusive relationships, but not in undue detail. It limited her detailed testimony under ER 403, which allows relevant evidence to be excluded if its probative value is substantially outweighed by the danger of prejudice, confusion of the issues, misleading the jury or by considerations of undue delay. The trial court has broad discretion in balancing the requisite factors under ER 403, and its determination will not be reversed on appeal absent an abuse of discretion. State v. Coe, 101 Wn.2d 772, 782, 684 P.2d 668 (1984). A review of Riker’s offer of proof demonstrates that the trial court acted reasonably. Second, Riker argues that the trial court erred in excluding Kim Tonge’s testimony regarding a conversation Riker had with someone named "Bill”. The trial court heard an offer of proof on Tonge’s testimony and issued a tentative ruling on its admissibility. Riker did not call Tonge, nor was there a request for a final ruling on the admissibility of her testimony. A defendant who does not seek a final ruling on a motion in limine after a court issues a tentative ruling waives any objection to the exclusion of the evidence. State v. Carlson, 61 Wn. App. 865, 875, 812 P.2d 536 (1991). Third, Riker argues that trial court erred in not requiring Burke to answer certain questions on cross and re-cross examination regarding his residence and previous employment. Burke refused to answer these questions because he feared retaliation from Riker’s cocaine supplier. Riker did not ask the court to instruct Burke to answer, nor did she attempt to make an adequate offer of proof on the excluded testimony. This issue also has not been adequately preserved for appellate review. Finally, Riker argues that the trial court erred in denying her motion for a mistrial. A court’s denial of a motion for a mistrial is reviewed under the abuse of discretion standard. State v. Essex, 57 Wn. App. 411, 415, 788 P.2d 589 (1990). Riker’s attorney talked about Riker’s history of abusive relationships in his opening statement; however, Riker was later prohibited from testifying in undue detail about those past relationships. At the close of trial, however, the jury was instructed not to take into consideration any statements made by counsel about the defendant’s past which were not supported by the evidence. The jury is presumed to have followed the court’s instructions. State v. Kroll, 87 Wn.2d 829, 835, 558 P.2d 173 (1976). In sum, we find that the trial court properly excluded the offered expert testimony, properly limited the defendant’s testimony, and correctly instructed the jury on the burden of proof. We do not find that any of the other claimed errors warrant a new trial. We affirm the convictions. Andersen, C.J., and Brachtenbach, Dolliver, Smith, and Guy, JJ., concur. We recognize that the United States Supreme Court has recently held that the Frye standard is not applicable under the Federal Rules of Evidence. Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 576, 125 L. Ed. 2d 469, 113 S. Ct. 2786 (1993). Nevertheless, in this state, we continue to adhere to the view that the Frye analysis is a threshold inquiry to be considered in determining the admissibility of evidence under ER 702. However, we find that many of the "general observations” made by Justice Blackmun in the majority opinion may be of use to trial judges in making the threshold Frye determination. See Daubert, 113 S. Ct. at 2796-98. Even were we to adopt the Daubert analysis, the testimony at issue here would be inadmissible. In United States v. Johnson, 956 F.2d 894, opinion supplemented on denial of rehearing sub nom. United States v. Emilio, 969 F.2d 849 (9th Cir. 1992), such testimony was allowed, but held to be relevant to sentencing only. The question before the court was whether "a special vulnerability to fear — a vulnerability not produced by those persons causing the defendant’s criminal action — may be taken into account.” Johnson, at 898. The court found such subjective vulnerability was not adequate for a defense of duress, but could be considered in sentencing. Johnson, at 900. A trial court’s rulings under ER 702 are reviewed using an abuse of discretion standard. State v. Kalakosky, 121 Wn.2d 525, 541, 852 P.2d 1064 (1993). Discussing the duress defense, one expert on criminal law defenses has explained that: "[W]here an actor engages in criminal conduct with the same knowledge and appreciation of its nature, consequences, and wrongfulness or criminality as a normal person, yet claims lack of control, and the lack of control is not so complete as to make the conduct involuntary . . . the law is generally unwilling to excuse unless there is a clear, confirmable, almost compelling disability. But further, unlike any other excusing condition, this impairment of control condition [duress] must be of a certain degree. Everyone is subject to pressures and temptations to engage in criminal conduct. For this type of condition to provide an excuse, the loss of control must be sufficiently serious that the actor has, at least temporarily, entered the realm of abnormality.” Paul H. Robinson, Criminal Law Defenses: A Systemic Analysis, 82 Colum. L. Rev. 199, 226 (1982). Without requiring a foundation which would distinguish Debbie Riker’s fear from that of every other citizen who has a troubled past, there is a danger that the evidentiary doors will be thrown open to every conceivable emotional trauma. See Janes, at 239-40. Ultimately, the jury’s finding of duress would rest upon sympathy for the defendant, rather than an evaluation of her present danger. These considerations are more appropriately a part of sentencing. See State v. Pascal, 108 Wn.2d 125, 139, 736 P.2d 1065 (1987) (upholding diminished capacity due to battered woman syndrome as a mitigating factor in sentencing); United States v. Johnson, 956 F.2d 894, opinion supplemented on denial of rehearing sub nom. United States v. Emilio, 969 F.2d 849 (9th Cir. 1992) (explaining use of syndrome for reduction of sentence under federal sentencing guidelines). Alternatively, amicus, the Northwest Women’s Law Center, argues that the State, not the defendant, bears the burden of proving the absence of duress under State v. Davis, 27 Wn. App. 498, 618 P.2d 1034 (1980). However, the Davis court seems to have overlooked our previous decision holding that the burden of proving the affirmative defense of duress lies with the defendant. State v. Razey, 54 Wn.2d 422, 426-27, 341 P.2d 149 (1959). Moreover, the Court of Appeals has since rejected the dicta in Davis suggesting that a person acting under duress acts "lawfully”. State v. Russell, 47 Wn. App. 848, 852-53, 737 P.2d 698, review denied, 108 Wn.2d 1032 (1987). The State, in carrying the burden of proving each element of an offense, does not bear the burden of disproving a claim of duress. We disapprove of Davis to the extent it suggests otherwise. If duress did negate an element of the crime, it would be nearly impossible to justify the murder/manslaughter exception in the statute. See RCW 9A.16.060(2). See generally Wayne R. LaFave & Austin W. Scott, Jr., Criminal Law § 49, at 374 n.3 (1972). he Court of Appeals recently grappled with the language in Bromley and ultimately concluded that "[t]he defendant must produce sufficient evidence of duress to raise a doubt in the jury’s mind as to his guilt”. State v. McAlister, 71 Wn. App. 576, 584, 860 P.2d 412 (1993). We disapprove of McAlister to the extent that it suggests the defendant’s burden of proof is something other than a preponderance of the evidence.

Sanders, J. We review a Court of Appeals decision affirming petitioner’s conviction for insurance fraud. The issue is whether venue of the crime becomes an element for the State to prove under the “law of the case” doctrine when it is given to the jury without objection in the “to convict” instruction, and if so, whether the State proved venue here. We conclude elements in the “to convict” instruction not objected to become the “law of the case” which the State must prove beyond a reasonable doubt to prevail. By acquiescing to jury instructions which included venue as a necessary element to convict, even though it really is not an element, the State assumed the burden of proving venue; it however failed to do so. The conviction is reversed and the charges are dismissed with prejudice. Facts James D. Hickman was tried for insurance fraud in Snohomish County Superior Court. The information charged Hickman with presenting, or causing to be presented, in Snohomish County, a false or fraudulent insurance claim. Trial testimony reveals that 23-year-old Hickman purchased an expensive 1990 Ford Mustang following high school graduation. Some time thereafter Hickman moved to Hawaii and left the car in Washington with a friend. The location where Hickman left the car was not adduced at trial. After Hickman had been in Hawaii for some time, two acquaintances from Washington contacted him while vacationing there and proposed they fake a theft of Hickman’s car for financial gain. According to these individuals, who traded immunity for testimony, Hickman finally agreed to have them “steal” his car. After their return they “stole” the car and sold it for parts. Hickman’s friend who was caring for the car called the police to report the car stolen. Hickman called his insurance company, located in Kent, King County, Washington, from Hawaii to file a claim on his car. The insurance company paid the balance on the loan. While the trial was held in Snohomish County, the only two references to Snohomish County were made by the Snohomish County Sheriff, who testified that he received a call reporting the car stolen “off Logan Road” without specification as to the Logan Road location, and by the sheriff’s deputy who testified he located the stripped car hulk on a rural road in Snohomish County. That was the extent of the evidence regarding Snohomish County. With that, the State charged Hickman by information with committing the crime of insurance fraud “in Snohomish County, Washington” (Clerk’s Papers (CP) at 55), and agreed to jury instructions which required Snohomish County venue to be proved as an element of the crime. The to convict instruction provided: To convict the defendant of the crime of Insurance Fraud, each of the following elements of the crime must be proved beyond a reasonable doubt: (1) That the defendant, James Hickman, on or about the 1st day of July, 1992, to the 31st of August, 1992, did knowingly present or cause to be presented a false or fraudulent claim or any proof in support of such a claim, for the payment of a loss under a contract of insurance; and (2) That the false or fraudulent claim was made in the excess of One Thousand Five Hundred Dollars ($1,500); and (3) That the act occurred in Snohomish County, Washington. CP at 33 (Instruction No. 6) (emphasis added). Following deliberations the jury returned a guilty verdict. At sentencing the court imposed 80 hours’ community service and 12 months’ community supervision with restitution to follow. Hickman appealed, arguing the State assumed the burden to prove Snohomish County venue but failed to do so. The Court of Appeals rejected Hickman’s claim and affirmed. State v. Hickman, 84 Wn. App. 646, 929 P.2d 1155 (1997). We granted review. State v. Hickman, 132 Wn.2d 1006, 940 P.2d 653 (1997). Law of the Case The law of the case is an established doctrine with roots reaching back to the earliest days of statehood. Under the doctrine jury instructions not objected to become the law of the case. State v. Hames, 74 Wn.2d 721, 725, 446 P.2d 344 (1968) (“ ‘The foregoing instructions were not excepted to and therefore, became the law of the case.’ ”) (quoting State v. Leohner, 69 Wn.2d 131, 134, 417 P.2d 368 (1966)); State v. Salas, 127 Wn.2d 173, 182, 897 P.2d 1246 (1995) (“[I]f no exception is taken to jury instructions, those instructions become the law of the case.”). In criminal cases, the State assumes the burden of proving otherwise unnecessary elements of the offense when such added elements are included without objection in the “to convict” instruction. State v. Lee, 128 Wn.2d 151, 159, 904 P.2d 1143 (1995) (“Added elements become the law of the case . . . when they are included in instructions to the jury.”) (citing State v. Hobbs, 71 Wn. App. 419, 423, 859 P.2d 73 (1993); State v. Rivas, 49 Wn. App. 677, 683, 746 P.2d 312 (1987)). See also State v. Barringer, 32 Wn. App. 882, 887-88, 650 P.2d 1129 (1982) (“Although the charging statute . . . did not require reference to [the added element], by including that reference in the information and in the instructions, it became the law of the case and the State had the burden of proving it.”) (citing State v. Worland, 20 Wn. App. 559, 565-66, 582 P.2d 539 (1978)), overruled in part on other grounds by State v. Monson, 113 Wn.2d 833, 849-50, 784 P.2d 485 (1989). On appeal, a defendant may assign error to elements added under the law of the case doctrine. State v. Ng, 110 Wn.2d 32, 39, 750 P.2d 632 (1988) (because the State failed to object to the jury instructions they “are the law of the case and we will consider error predicated on them.” (citations omitted)). Such assignment of error may include a challenge to the sufficiency of evidence of the added element. Barringer, 32 Wn. App. at 887-88; Schatz v. Heimbigner, 82 Wash. 589, 590, 144 P. 901 (1914) (“These alleged errors are not available to the appellants, because they are at cross purposes with the instructions of the court to which no error has been assigned. There is but one question open to them; that is, Is there sufficient evidence to sustain the verdict under the instructions of the court?”); Tonkovich v. Department of Labor & Indus., 31 Wn.2d 220, 225, 195 P.2d 638 (1948) (“It is the approved rule in this state that the parties are bound by the law laid down by the court in its instructions where, as here, the charge is approved by counsel for each party, no objections or exceptions thereto having been made at any stage. In such case, the sufficiency of the evidence to sustain the verdict is to be determined by the application of the instructions ”) When determining whether there is sufficient evidence to prove the added element, the reviewing court inquires “ ‘whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’ ” State v. Green, 94 Wn.2d 216, 221, 616 P.2d 628 (1980) (quoting Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979)). If the reviewing court finds insufficient evidence to prove the added element, reversal is required. Lee, 128 Wn.2d at 164; Hobbs, 71 Wn. App. at 425. Retrial following reversal for insufficient evidence is “unequivocally prohibited” and dismissal is the remedy. State v. Hardesty, 129 Wn.2d 303, 309, 915 P.2d 1080 (1996) (“The double jeopardy clause of the Fifth Amendment to the U.S. Constitution protects against a second prosecution for the same offense, after acquittal, conviction, or a reversal for lack of sufficient evidence.”) (citing North Carolina v. Pearce, 395 U.S. 711, 717, 89 S. Ct. 2072, 23 L. Ed. 2d 656 (1969), overruled in part on other grounds by Alabama v. Smith, 490 U.S. 794, 109 S. Ct. 2201, 104 L. Ed. 2d 865 (1989)). Hickman relies on State v. Hobbs, 71 Wn. App. 419, 423, 859 P.2d 73 (1993) as dispositive in his favor. In Hobbs the State acquiesced to adding venue of the crime as an added element in the “to convict” instruction. Id. at 420. The court applied the law of the case doctrine and concluded that while “[vjenue is not an element of the crime,” once it is given to the jury as an instruction it becomes an added element which “the State assumes the burden of proving.” Id. at 423 (citing State v. Worland, 20 Wn. App. 559, 566, 582 P.2d 539 (1978); State v. Hawthorne, 48 Wn. App. 23, 27, 737 P.2d 717 (1987)). Because the State failed to prove venue, defendant’s conviction was reversed. The same division of the Court of Appeals which decided Hobbs now declines to follow that ruling, concluding this court rejected Hobbs in State v. Dent, 123 Wn.2d 467, 869 P.2d 392 (1994). Hickman, 84 Wn. App. at 653. But we did not and Hobbs remains good law. In Dent, defendants were convicted of conspiring to commit first degree murder. On appeal they argued venue of the crime should have been included as an element in the “to convict” instruction. Dent, 123 Wn.2d at 479. We simply held while the state constitution requires trial in the county where the crime was committed, venue is not an element of the offense. Id.’’ We then noted defendants’ failure to request the desired instruction or object to those actually given waives any objection on appeal as “[i]t is elementary that timely exceptions [to proposed jury instructions], before the reading of the instructions to the jury, are necessary . . . Id. We concluded that because venue was not requested by the defendant, and because it is not otherwise a necessary element of murder, there was no error. Id. at 478-79. Dent enunciated two rules: (1) venue is not a necessary element of conspiracy to commit murder; and (2) the parties will be bound by the instructions given at trial unless they timely object at trial. Dent is in harmony with Hobbs and all precedent on the law of the case doctrine. Indeed, Dent upholds law of the case by stressing that the parties must object to jury instructions before they are given on penalty of forfeiture of such objection. We hold the law of the case applies with equal force when the added element is venue. The State asks, in the alternative, the law of the case doctrine be abandoned. However, we note the law of the case doctrine benefits the system by encouraging trial counsel to review all jury instructions to ensure their propriety before the instructions are given to the jury. Moreover, the doctrine is well established by multiple precedent and is encapsulated in criminal rule CrR 6.15(c), which requires all objections to jury instructions be made before the instructions are given to the jury. The State’s offer is one we can refuse. Here the State acquiesced to jury instructions which included venue as an additional element. Accordingly, venue became an element for the State to prove in order to prevail. The doctrine applies here and the Court of Appeals erred by not so recognizing. The only remaining question is whether the State proved the added element of venue. Insurance fraud is defined as to “knowingly present or cause to be presented a false or fraudulent claim . . . .” CP at 33 (Jury Instruction No. 6). Thus, the inquiry is whether the State offered sufficient evidence that Hickman presented or caused to be presented a false insurance claim in Snohomish County. When Hickman allegedly called his insurance company to submit the fraudulent claim, he was in Hawaii while his insurance company was in King County. The relevant reference to Snohomish County was the Snohomish County Sheriffs testimony that he had been called, following the theft of the vehicle, to an address “off Logan Road.” Even assuming Logan Road is somewhere in Snohomish County and only in Snohomish County, such evidence simply does not demonstrate Hickman knowingly presented or caused to be presented a fraudulent insurance claim in Snohomish County. We reverse and dismiss. Smith, Johnson, Madsen, and Alexander, JJ., concur. RCW 48.30.230, making insurance fraud a crime, provides: Any person, who, knowing it to be such: (1) Presents, or causes to be presented, a false or fraudulent claim, or any proof in support of such a claim, for the payment of a loss under a contract of insurance; or (2) Prepares, makes, or subscribes any false or fraudulent account, certificate, affidavit, or proof of loss, or other document or writing, with intent that it be presented or used in support of such a claim, is guilty of a gross misdemeanor, or if such claim is in excess of one thousand five hundred dollars, of a class C felony. In 1896, this court held “whether the instruction in question was rightfully or wrongfully given, it was binding and conclusive upon the jury, and constitutes upon this hearing the law of the case . . . .” Pepperall v. City Park Transit Co., 15 Wash. 176, 180, 45 P. 743, 46 P. 407 (1896). In 1917, this court declared the law of the case doctrine to be “so well established that the assembling of the cases is unnecessary.” Peters v. Union Gap Irrig. Dist., 98 Wash. 412, 413, 167 P. 1085 (1917). The State asserts that Hickman may not challenge sufficiency of the evidence for the first time on appeal. This argument is without merit. Appeal is the first time sufficiency of evidence may realistically be raised. Further, this court has recently affirmed that a defendant may raise sufficiency of the evidence for the first time on appeal. State v. Alvarez, 128 Wn.2d 1, 9, 904 P.2d 754 (1995). interestingly, the court in Hobbs reversed for insufficient evidence and then remanded for retrial. 71 Wn. App. at 425. Defendant did not seek review of the remand order, and it remains to be explained how a court can, consistent with Hardesty, reverse for insufficient evidence and not dismiss. indeed, in State v. Lee, a unanimous opinion issued one year after Dent, this court relied on Hobbs in upholding law of the case. State v. Lee, 128 Wn.2d 151, 159, 904 P.2d 1143 (1995) (“Added elements become the law of the case . . . when they are included in instructions to the jury.”) (citing Hobbs, 71 Wn. App. at 423). Constitution article I, section 22 (amendment 10) provides the defendant the right “to have a speedy public trial by an impartial jury of the county in which the offense is charged to have been committed . . . (Citing State v. Marino, 100 Wn.2d 719, 727, 674 P.2d 171 (1984) (“ ‘The venue must be proved by the plaintiff but it need not be proved beyond a reasonable doubt; it is sufficient if venue can be reasonably inferred from the facts and circumstances ....’” (quoting 11 Washington Pattern Jury Instructions: Criminal 4.21 cmt.)).

Utter, J. Eight Weyerhaeuser employees suffered hearing loss as a result of occupational noise. Upon retirement, each filed a claim pursuant to the Washington Industrial Insurance Act (hereinafter the Act). The Department of Labor and Industries (hereinafter the Department) determined that each worker was permanently partially disabled, and ordered Weyerhaeuser to pay the full cost of each disability. In each case, however, a portion of the employee's hearing loss occurred while the State insured Weyerhaeuser's workers' compensation program, and a portion of the hearing loss occurred after the company became a self-insurer. Weyerhaeuser argues, therefore, that the State should pay a proportionate share of the disability award. We affirm the Department's order and hold that Weyerhaeuser, as the insurer covering the risk during the most recent exposure bearing a causal relationship to the disability, is liable for the entire amount of the award. In so holding, we follow the majority of other states and adopt the last injurious exposure rule. Donald Tri worked for Weyerhaeuser from 1950 through 1984. When Tri began his employment, the State insured Weyerhaeuser's workers' compensation program. On January 1, 1972, Weyerhaeuser became a self-insurer pursuant to RCW 51.14. During the course of his employment, Tri suffered 43.13 percent hearing loss from both ears. Of the total hearing loss, 29.69 percent occurred during the time the State insured the workers, and 13.44 percent occurred during the time the Company was a self-insurer. Tri filed a claim for occupational hearing loss in 1985. The Department issued an order allowing the claim and directing the Company to pay the total permanent partial disability award. The Board of Industrial Insurance Appeals affirmed the Department's order. The Board applied the last injurious exposure rule, and held that the insurer "on the risk" on the date of compensable disability bears the entire cost of the disability. In an appeal from this decision, the Snohomish County Superior Court affirmed the Department's order. The Company appealed to the Court of Appeals, which certified the case to this court pursuant to RCW 2.06.030. Weyerhaeuser does not contest either the appropriateness or the amount of the award. It only challenges the holding that it is solely liable for the full amount of that award. In each of the cases presently on appeal the Board continued its consistent policy of applying the last injurious exposure rule in occupational disease cases. Weyerhaeuser maintains, however, that apportionment among insurers is the more appropriate rule. Under apportionment, each insurer is responsible for the portion of the disability that occurred during its coverage of the employee. Weyerhaeuser asserts three arguments in support of its position. First, it argues the segregation provisions of the Act authorize apportionment. Second, it asserts the last injurious exposure rule is incompatible with the Act. Third, it maintains that equity requires that the State be held responsible for the percentage of the disability that occurred when it provided coverage to Weyerhaeuser employees. I Washington statutes allow for segregation of prior disabilities in determining the amount of compensation due an injured worker. RCW 51.32.080(3) provides: Should a worker receive an injury to a member or part of his or her body already . . . permanently partially disabled, resulting in the amputation thereof or in an aggravation or increase in such permanent partial disability but not resulting in the permanent total disability of such worker, his or her compensation for such partial disability shall be adjudged with regard to the previous disability of the injured member or part and the degree or extent of the aggravation or increase of disability thereof. That provision directs the Department to consider and segregate the extent of the previous disability when fixing the amount of the compensation due for the second injury. Beyer v. Department of Labor & Indus., 17 Wn.2d 29, 31, 134 P.2d 948, 137 P.2d 1016 (1943); Corak v. Department of Labor & Indus., 2 Wn. App. 792, 801, 469 P.2d 957 (1970). RCW 51.32.100 provides: If it is determined that an injured worker had, at the time of his or her injury, a preexisting disease and that such disease delays or prevents complete recovery from such injury, it shall be ascertained . . . the period over which the injury would have caused disability were it not for the diseased condition and the extent of permanent partial disability which the injury would have caused were it not for the disease, and compensation shall be awarded only therefor. On its face RCW 51.32.100 relates only to setting the amount of compensation. Neither it nor RCW 51.32.080(3) explicitly addresses the question of who is hable for that compensation. Furthermore, each statute deals only with injuries; neither addresses occupational diseases. Nonetheless, Weyerhaeuser contends that the above statutes indicate a legislative preference for apportionment. The Company interprets the segregation statutes as a type of apportionment, since those statutes "apportion" the amount of compensation based on the cause of the disability. Weyerhaeuser then points to the RCW 51.16.040 requirement that [t]he compensation and benefits provided for occupational diseases shall be paid and in the same manner as compensation and benefits for injuries under this title. The Company reasons that RCW 51.16.040, read in conjunction with the segregation statutes, requires apportionment in these cases. However, RCW 51.16.040 mandates only that the amount of benefits paid be the same regardless of whether the underlying cause of disability is an injury or an occupational disease. The statute does not address apportionment of responsibility for payment of the compensation. We disagree with Weyerhaeuser's argument that the segregation provisions authorize apportionment. Those provisions only address the computation of the amount of the award. Furthermore, they could be read as indicating a legislative intent not to require apportionment of responsibility in occupational disease cases. Two rules of statutory construction lead to this conclusion. First, each provision of the statute should be read in relation to the other provisions, and the statute should be construed as a whole. State v. Sommerville, 111 Wn.2d 524, 531, 760 P.2d 932 (1988). Second, when a statute specifies the class of things upon which it operates, it can be inferred that the Legislature intended to exclude any omitted class. State v. Williams, 94 Wn.2d 531, 537, 617 P.2d 1012, 24 A.L.R.4th 1191 (1980). In RCW 51.32.080(3) the Legislature authorizes segregation of a prior disability when there is an additional injury to a part of the body already permanently partially disabled. RCW 51.32.100 mandates segregation when a preexisting disease delays or prevents recovery from an injury. The "second injury fund" authorizes apportionment when a previously disabled worker becomes permanently and totally disabled. Thus, the Legislature has, in three specific instances, authorized a form of apportionment. It can be inferred that the Legislature's refusal to specifically approve apportionment among successive insurers in occupational disease cases is intentional. Therefore, we reject Weyerhaeuser's argument, and decline to judicially impose apportionment in these cases. II Weyerhaeuser asserts that the last injurious exposure rule is incompatible with the Act. The Company's argument is twofold. First, it argues that since the Washington statutory scheme does not allow private insurance there is no justification for the rule. Second, it contends that the rule defeats the Act's goal of limiting employer liability. The normal justification for the last injurious exposure rule is that the rule solves two problems peculiar to occupational disease cases involving successive insurers. The Supreme Court of Oregon characterizes these as the proof problem and the assignment of responsibility problem. In re Runft, 303 Or. 493, 499, 739 P.2d 12 (1987). With respect to Weyerhaeuser's argument, only the assignment of responsibility problem is at issue. This refers to the difficulty in determining which insurer should be held responsible for what percentage of the award. Under an apportionment system there must be a determination made as to what proportion of the disability occurred when each insurer was at risk. As the Board notes, however, an occupational disease may occur over a prolonged period of time during which a worker may receive multiple exposures while in the course of employment with multiple employers. If each successive employment exposes the worker to the conditions giving rise to the occupational disease, then that disease has arisen naturally and proximately out of each of those employments. . . . The problem is that it is difficult, if not impossible, to go back in time and determine the degree or extent to which each and every exposure affected the ultimate disability. In re Renfro, Bd. of Indus. Ins. Appeals Dec. 86,2392 at 6 (1988); see also 4 A. Larson § 95.11, at 17-116. This problem makes it difficult to assign proportionate responsibility. The last injurious exposure rule eliminates this problem by arbitrarily assigning responsibility to the insurer at risk during the last exposure which bears a causal relationship to the disease. Osteen v. A.C.&S., Inc., 209 Neb. 282, 290, 307 N.W.2d 514 (1981). While this result may appear unfair in a specific case, its benefit is that the costs will be spread proportionately among insurers over time by the law of averages. Runft, 303 Or. at 500. Weyerhaeuser agrees that this may be true in states where numerous private insurers are involved in workers' compensation programs. Washington, however, is one of only six states that does not allow private carriers to participate in workers' compensation insurance. Therefore, the costs are spread only between two groups: the State, and self-insurers. Weyerhaeuser contends that most changes in insurance are from state-funded to self-insured employers. Therefore, according to Weyerhaeuser, the self-insurers bear a disproportionate share of the burden. The Company concludes that, in Washington, the law of averages does not mitigate the arbitrariness of the last injurious exposure rule. It therefore asserts there is no justification for the rule, and the rule conflicts with the statutory scheme. This argument fails for several reasons. First, there is nothing in the record to support the Company's contention that most changes are from state coverage to self-insurance. Second, there is nothing in the record to support the Company's claim that self-insurers bear a disproportionate share of the burden of the last injurious exposure rule. Weyerhaeuser fails to consider that employees might switch jobs from a self-insurer to a participant in the state fund. In that event, the last injurious exposure rule would impose liability upon the State. Finally, we believe Weyerhaeuser's claim misconstrues the importance of the law of averages argument. Courts frequently cite the law of averages argument as mitigating the arbitrariness of the last injurious exposure rule. See, e.g., Runft, 303 Or. at 500; Osteen, 209 Neb. at 291. Courts do not, however, cite the law of averages argument as a reason for adopting the rule. Instead, courts adopt the rule because [i]t is more economical arbitrarily to assign full responsibility to the last employer than to attempt to apportion accurately responsibility according to causation. In addition, by assigning responsibility to an employer who can be identified without a determination of causation, the claimant is better protected from the risk of filing claims against the wrong employer. . . . Runft, 303 Or. at 500. The rule also provides the benefit of not requiring the disabled worker to meet the often impossible burden of proving how a given exposure contributed to his or her disease. In re Renfro, Bd. of Indus. Ins. Appeals Dec. 86,2392, at 6; Runft, 303 Or. at 499; Inkley v. Forest Fiber Prods. Co., 288 Or. 337, 344, 605 P.2d 1175 (1980). Those benefits are not lessened where the law of averages does not mitigate the rule's arbitrariness. Even if Weyerhaeuser is correct that the law of averages argument does not work in Washington, there are still sufficient justifications for adopting the last injurious exposure rule. Weyerhaeuser also argues that adoption of the rule conflicts with the Act's goal of limiting employer liability. Adoption of the rule does not, however, defeat that goal. The amount of compensation is still statutorily limited, and the employer is still protected from additional common law liability. Furthermore, limiting employer liability is only one of the goals of the Act. As stated by this court: The [Act] was the result of a compromise between employers and workers. In exchange for limited liability the employer would pay on some claims for which there had been no common law liability. The worker gave up common law remedies and would receive less, in most cases, than he would have received had he won in court in a civil action, and in exchange would be sure of receiving that lesser amount without having to fight for it. Dennis v. Department of Labor & Indus., 109 Wn.2d 467, 469, 745 P.2d 1295 (1987). Thus, the Act also is intended to provide, at the expense of the industry employing them, a sure and speedy relief for work[ers] . . . from occupational diseases arising naturally and proximately from extrahazardous employment. . . . Favor v. Department of Labor & Indus., 53 Wn.2d 698, 703, 336 P.2d 382 (1959). By avoiding the numerous procedural problems associated with apportionment, the last injurious exposure rule better serves the goal of swift and certain relief for injured workers. It is easier to administer than the apportionment rule, and usually provides the highest level of benefits for the claimant. 4 A. Larson § 95.12, at 17-120. The Board specifically rejected Weyerhaeuser's apportionment argument. While the Board's interpretation of the Act is not binding upon this court, it is entitled to great deference. Dolman v. Department of Labor & Indus., 105 Wn.2d 560, 566, 716 P.2d 852 (1986); Scott Paper Co. v. Department of Labor & Indus., 73 Wn.2d 840, 440 P.2d 818 (1968); 81 Am. Jur. 2d Workmen's Compensation § 33 (2d ed. 1976). The Court of Appeals has also adopted the last injurious exposure rule. See Champion Int'l, Inc. v. Department of Labor & Indus., 50 Wn. App. 91, 746 P.2d 1244 (1987). In Champion, a worker suffered two on-the-job injuries. One occurred while the employer was state insured, and the other while the employer was self-insured. In holding the employer liable for the fall cost of vocational retraining, the court rejected apportionment and applied the last injurious exposure rule. 50 Wn. App. at 93-94. The Court of Appeals, the Board, and the Department have all adopted the last injurious exposure rule. We, too, conclude that implementation of the rule furthers the Act's overall goals. Implementation of the last injurious exposure rule may create a tension between the Act's goals of providing swift and certain relief to the worker on the one hand, and of limiting employer liability on the other. However, given our commitment to liberally construing the Act in favor of injured workers, Sacred Heart Med. Ctr. v. Carrado, 92 Wn.2d 631, 635, 600 P.2d 1015 (1979); Lightle v. Department of Labor & Indus., 68 Wn.2d 507, 510, 413 P.2d 814 (1966), that tension should be resolved in favor of the injured worker. Dennis, 109 Wn.2d at 470; Lightle, 68 Wn.2d at 510. Ill Weyerhaeuser and amicus also argue that application of the last injurious exposure rule is not equitable. They point out that when Weyerhaeuser was state insured the Company paid premiums and, in return, the state insurance fund assumed the risk of any claims. Apportionment would assure that the State fulfill its part of the bargain by delivering on its promise to assume the risk. At the heart of this argument is the assertion that the Act is a type of insurance. See, e.g., Peterson v. Department of Labor & Indus., 22 Wn.2d 647, 651, 157 P.2d 298 (1945) (the Act is "industrial insurance and a workman is entitled to the insurance protection given by the act"). Therefore, basic principles of risk assumption should apply. While that is true, it is also true that the court müst interpret the Act consistently with the Act's stated goals. The last injurious exposure rule furthers the Act's purposes. Adopting apportionment may comport with basic insurance principles, but it would not further the goals of the Act. Therefore, we decline to adopt apportionment. If the application of the last injurious exposure rule does result in some inequity, that matter is best corrected by the Legislature. Weyerhaeuser also assigns error to the Board's holding that the claimants' occupational diseases did not become compensable until after Weyerhaeuser became a self-insurer. For purposes of determining which insurer is hable under the last injurious exposure rule, the question of when a disease becomes compensable is irrelevant. Therefore, we do not address this assignment of error. Dore, C.J., and Brachtenbach, Dolliver, Andersen, Durham, Smith, Guy, and Johnson, JJ., concur. Title 51 of the Revised Code of Washington. See 4 A. Larson, Workmen's Compensation § 95.20, at 17-121 (1990) and cases cited therein. The individual facts surrounding each worker are not in dispute. The facts of Tri's case are representative of each worker, and are detailed for illustrative purposes. We will use the word "Company" interchangeably with "Weyerhaeuser". See In re Lamberton, Bd. of Indus. Ins. Appeals Dec. 63,264 (1984); In re Pate, Bd. of Indus. Ins. Appeals Dec. 58,399 (1982); In re Lawrence, Bd. of Indus. Ins. Appeals Dec. 54,394 (1980); In re Hanninen, Bd. of Indus. Ins. Appeals Dec. 50,653 (1979); In re Monroe, Bd. of Indus. Ins. Appeals Dec. 49,698 (1978). RCW 51.16.120. TMs is in keeping with the holdings of numerous courts that apportionment should only be authorized by specific legislative enactment. See, e.g., Hartl v. Big Sky of Mont., Inc., 176 Mont. 540, 579 P.2d 1239 (1978); Pearson v. Continental Motors Corp., 395 Mich. 362, 235 N.W.2d 591 (1975); Andrade v. Minted, 102 R.I. 148, 229 A.2d 50 (1967). The "proof problem" refers to the difficulty an injured worker has in proving that a specific exposure contributed to the development of his or her occupational disease. The last injurious exposure rule requires the worker to prove only that the disease was caused by employment related exposure. In re Runft, 303 Or. 493, 499, 739 P.2d 12 (1987). There are also numerous procedural problems with apportionment, including determining who bears the burden of proof and how statutes of limitations affect the worker’s claim. See generally 4 A. Larson §§ 95.12, 95.34 and cases cited therein. Weyerhaeuser claims these problems are solvable by an apportionment rule that requires the insurer to first pay the claim and then attempt to gain apportionment. Under this rule, Weyerhaeuser would assign the burden of proving apportionment to the insurer. While this might solve the general apportionment problems, adoption of such a complex rule is the province of the Legislature. See In re Renfro, Bd. of Indus. Ins. Appeals Dec. 86,2392, at 4; Champion Int'l, Inc. v. Department of Labor & Indus., 50 Wn. App. 91, 93, 746 P.2d 1244 (1987). 4 A. Larson app. A-7-1 (Table 7). "[Apportionment as a remedy between successive insurers tends to expand the parties and issues involved in an occupational disease case, thereby creating uncertainty and delay in the relief sought by a disabled worker, contrary to RCW 51.04.010." In re Renfro, Bd. of Indus. Ins. Appeals Dec. 86,2392, at 10. The Department recently codified the last injurious exposure rule. See WAC 296-14-350. In adopting the last injurious exposure rule for purposes of assigning liability among successive insurers, we do not mean to imply that the rule applies in all workers' compensation contexts. For example, we have also decided this day that the rule does not apply in determining which schedule of benefits to use in a given case. See Department of Labor & Indus. v. London, 117 Wn.2d 122, 814 P.2d 626 (1991). Today we adopt the rule only for purposes of determining liability among successive insurers in occupational disease cases.

The opinion of the court was delivered by Fullerton, C. J. — This is an action for malicious prosecution. The respondent was arrested on a warrant-issued by a magistrate charging him with the crime of bringing stolen property into this state from a foreign country, and confined in jail for about one week’s time. At the time fixed for the preliminary hearing he was discharged at the request of the prosecution without examination or any evidence being brought against him. The property which he was charged with having brought into the state was alleged to be the property of a partnership composed of the appellants, and to have been stolen by one G. E. Daniel, at Dawson, in the Northwest Territory, where Daniel had been connected in business in some form with the partnership. The respondent alleged in his compiaint that the prosecution was instituted maliciously and without probable cause, and that he was damaged thereby in the sum of fifty thousand dollars. The jury returned -a verdict in his favor for one thousand dollars, and it is ■from the judgment entered thereon that this appeal is ■prosecuted. The court gave to the jury the following instructions: “2. In an action for malicious prosecution, the fact that the plaintiff was discharged by the examining magistrate without’ hearing on the merits throws the burden of proving probable cause on the defendants.” “4. The dismissal of the -prosecution alleged in the complaint without a trial is competent not only for the purpose cf showing an end of the prosecution, but in addition it •establishes a prima facie case of want of probable cause, and throws upon the defendants the burden of proving that there was a want of probable cause for the prosecution •of the plaintiff.” “8. You are instructed further that the presumption exists that there was probable cause, and that the defendants acted without malice and in good faith in instituting the criminal prosecution, and that presumption stands until the plaintiff shows by a preponderance of the testimony that there was a total absence of probable cause, and that the prosecution was malicious; and if the plaintiff has-failed to prove to your satisfaction, by a preponderance of' testimony, the total lack of probable cause, and malicious institution of prosecution, then your verdict must be for the defendants. In connection with this instruction, however, I charge you that proof that the plaintiff was discharged at the preliminary hearing without a trial on the-merits constitutes prima facie proof of the want of probable cause, and throws the burden of disproving it upon the defendants.” From these instructions it will be observed that the-trial court took the view that the showing on the part of the respondent that the prosecution against him was-voluntarily dismissed cast the burden of showing probable-cause therefor upon the appellants. Assuming that a voluntary dismissal is equivalent to a discharge by the committing magistrate, there are cases which maintain this-view. Hidy v. Murray, 101 Iowa, 65 (69 N. W. 1138); Barhight v. Tammany, 158 Pa. St. 545 (28 Atl. 135, 38 Am. St. Rep. 853); Bigelow v. Sickles, 80 Wis. 98 (49 N. W. 106, 27 Am. St. Rep. 25); Bornholdt v. Souillard, 36 La. An. 103. On the other hand, there are cases-which hold that a discharge by a committing magistrate is not even evidence of want of probable cause. Stone v. Crocker, 24 Pick. 84; Lancaster v. Langston, 36 S. W. 521; Israel v. Brooks, 23 Ill. 575; Thompson v. Beacon Valley Rubber Co., 56 Conn. 493 (16 Atl. 554); Heldt v. Webster, 60 Tex. 207; Apgar v. Woolston, 43 N. J. Law, 57. Others, again, announce the rule that the showing of a discharge by the committing magistrate is evidence of" want of probable cause, sufficient to make a prima facie case, but does not shift the burden of proof. Cooley, Torts, 184; 3 Lawson’s Bights, Bern. & Prac., § 1084; Eastman v. Monastes, 32 Ore. 291 (51 Pac. 1095, 67 Am. St. Rep. 531); Scott v. Wood, 81 Cal. 398 (22 Pac. 871); Vinal v. Core and Compton, 18 W. Va. 1; Rankin v. Crane, 104 Mich. 6 (61 N. W. 1007). This latter is, we conceive, the correct rule. Generally the burden of maintaining the affirmative of the issue involved in the action is upon the party alleging the fact which constitutes the issue, and there is no apparent reason for making an exception in favor of actions for malicious prosecutions, more particularly as to the issue now in consideration. The very gist of an action for malicious prosecution is want of probable cause. The truth of other material allegations, such, for example, as malice, may be inferred from proof of want of probable cause, but this allegation, being of the very substance of the issue, must be substantially and expressly proved, and is never inferred or implied from the proof of anything else. We think, therefore, that the burden of proving this issue remained upon the respondent throughout the trial, and that the court erred in charging the jury to the contrary. The court refused to charge the jury to the effect that one partner is not liable for a malicious prosecution instituted by his co-partner, unless he advises, directs, or participates therein, even though the prosecution be purported to be instituted for some wrongful or criminal act with relation to property belonging to the firm. This was error. The rule is that a partner, as such, is not liable for a malicious prosecution instituted by his co-partner unless committed in the course of, and for the purpose of transacting, the partnership business. As a prosecution for larceny is not within the scope of a business of a mercantile partnership (the business engaged in by the appellants), there could be no presumption of participation by all of the partners, and it was necessary that this fact be proven. Marks & Co. v. Hastings, 101 Ala. 165 (13 South. 297); Gilbert v. Emmons, 42 Ill. 143 (89 Am. Dec. 412); Rosenkrans v. Barker, 115 Ill. 331 (3 N. E. 93, 56 Am. Rep. 169). The evidence, however, was conflicting on the question whether or not all of the appellants participated in the prosecution, and the jury should have been instructed on both sides of the question. It is contended that the court erred in refusing to grant a nonsuit in favor of all of the appellants. This is based on the claim that the appellants fully and fairly stated all of the facts of their case to the prosecuting attorney of King county, and that the prosecution was instituted with his consent and advice. The trial court took the view that there was such a substantial dispute in the evidence as to make this question one for the jury, and instructed them on that theory. A perusal of the record inclines us to the belief that the court correctly interpreted the evidence, and hence we find no error in its refusal to grant a nonsuit. The judgment is reversed and the cause remanded for a new trial. Dunbar, Mount, Hadley and Anders, JJ., concur.

Utter, J. This is an appeal from a criminal conviction for drug loitering. Petitioner John Luvene seeks review of his conviction for drug loitering under Tacoma Municipal Code (TMC) 8.72.010. He challenges the ordinance as being unconstitutionally overbroad and vague, as well as challenging the sufficiency of the evidence to convict him of the crime of drug loitering. Finally, he claims the Tacoma ordinance is unconstitutional as being preempted by RCW 69.50.608. As construed, we find the Tacoma drug loitering ordinance to be both constitutional and not preempted by state law. The conviction is affirmed. I At 8:09 p.m. on Friday, August 26, 1988, a Tacoma police officer was near the intersection of 14th and "J" Streets in Tacoma. The Tacoma Police Department had received phone calls and complaints from citizens who lived in that area about persons flagging down vehicles and pedestrians to make drug deals. From a distance of about 30 feet, the officer watched three men in their mid-twenties standing on the southeast comer of 14th and "J" Streets. They were pacing two to three steps in all directions and continually surveying their surroundings. Petitioner was one of the three. The pohce officer did not know the petitioner. The men stood in the middle of the intersection waving at and trying to flag down vehicles, several of which stopped. Luvene flagged down a car and then, with a wave of his arm, beckoned one of his companions to come over to the stopped car. Once the car stopped, Luvene ran up to it and then again waved for this same man to come over. As the man walked to the stopped car, the pohce officer saw him reach into his pants pocket and pull out a clear plastic bag containing what appeared to be 10 or more pieces of rock cocaine. Upon entering the passenger's seat, this companion of Luvene's gave the driver what appeared to be some of the rock cocaine and the driver gave him paper money. During this transaction, Luvene was standing next to his companion watching the transaction and surveying the street scene. A short time after this transaction the pohce saw Luvene walking on the sidewalk with someone who appeared to be smoking a crack pipe. At approximately 8:50 p.m., a car arrived at the intersection, sounded its horn, and stopped to converse with a number of persons at the intersection, including the petitioner. After the car pulled out of the intersection, the pohce observed the driver making exchanges with a number of persons. At this time the pohce officers approached and arrested five persons, including Luvene, for drug loitering. Luvene was given Miranda warnings. A pipe of glass tubing, commonly used to smoke crack cocaine, was found on one of the persons arrested. The car contained a plastic bag of white powder and two additional glass tube pipes. No drugs or drug paraphernalia were found on Luvene. Luvene raised his overbreadth and vagueness challenges in a motion to dismiss the charges, which was denied by the Tacoma Municipal Court on October 21, 1988. Luvene stipulated to the facts contained in the pohce report and was found guilty of drug loitering. Luvene filed a notice of appeal to the Pierce County Superior Court pursuant to RALJ 2.4(c) and 2.6. On September 21,1990, the Pierce County Superior Court held that the drug loitering ordinance was not overbroad or vague and affirmed Luvene's conviction. The judge's memorandum decision indicates he declined to consider the petitioner's claim that the Tacoma drug loitering ordinance was facially overbroad. This denial was based on the theory that petitioner lacked standing because his conduct fell within the valid reach of the ordinance. Luvene then sought direct review of the superior court decision under RAP 4.2(a)(4). Because this case raises fundamental and urgent issues of broad public import, we accepted review. II Luvene argues that Tacoma's drug loitering ordinance is preempted by various statutes dealing with controlled substances. See RCW 69.50.608. He suggests that the Tacoma ordinance and sections of RCW 69.50 prohibit the same conduct but that the Tacoma ordinance punishes this conduct as a misdemeanor while RCW 69.50.401 through .410 punish this conduct as a felony. This conflict of the penalty provisions, petitioner argues, requires that the Tacoma ordinance be preempted by the state controlled substance statutes. A Neither the petitioner nor respondent in this case argued the preemption issue. Rather, this issue was raised and briefed by amicus. Respondent City of Tacoma has argued that these circumstances preclude this court from addressing the preemption issue. While we ordinarily only consider issues that have been raised by the parties, there are exceptions. Siegler v. Kuhlman, 81 Wn.2d 448, 502 P.2d 1181 (1972), cert. denied, 411 U.S. 983 (1973). It is proper to do so when there is no dispute about the law to be applied. See Alverado v. WPPSS, 111 Wn.2d 424, 429-30, 759 P.2d 427 (1988), cert. denied, 490 U.S. 1004 (1989). The preemption doctrine of Const. art. 11, § 11 is a well-settled area of law. See Brown v. Yakima, 116 Wn.2d 556, 807 P.2d 353 (1991). The parties here do not raise questions about the effect or contours of the preemption doctrine itself. Rather, they raise questions about its application to the Tacoma drug loitering ordinance. Many local governments have enacted similar drug loitering ordinances, and this issue will frequently come before the court. The fact that the issue here concerns an application of the preemption doctrine rather than a dispute over its substantive principles makes it appropriate to consider the preemption question presented in this case. B Under Const. art. 11, § 11, cities have the right to enact ordinances prohibiting the same acts prohibited by state law so long as the state enactment was not intended to be exclusive and the city ordinance does not conflict with the general law of the state. See Brown, at 559. An ordinance must yield to a statute on the same subject on either of two grounds: if the statute preempts the field, leaving no room for concurrent jurisdiction, or if a conflict exists between the two that cannot be harmonized. Brown, at 559. Preemption occurs when the Legislature states its intention expressly, or by necessary implication, to preempt the field. Brown. There is here no expressly stated intention to preempt the field. In such situations: [T]he court may look to the purposes of the statute and to the facts and circumstances upon which the statute was intended to operate. If, however, the Legislature "affirmatively expresses its intent, either to occupy the field or to accord concurrent jurisdiction, there is no room for doubt." (Citations omitted.) Brown, at 560 (quoting Lend v. Seattle, 63 Wn.2d 664, 670, 388 P.2d 926 (1964)). Tacoma contends that RCW 69.50.608 expresses the Legislature's intent to allow a measure of concurrent juris diction in the field of criminalizing drug-related activity. The statute states: The state of Washington fully occupies and preempts the entire field of setting penalties for violations of the controlled substances act. Cities, towns, and counties . . . may enact only those laws and ordinances relating to controlled substances that are consistent with this chapter. Such local ordinances shall have the same penalties as provided for by state law. Local laws and ordinances that are inconsistent with the requirements of state law shall not be enacted and are preempted . . .. RCW 69.50.608. While the statute expressly preempts the field of setting penalties for violations of the Uniform Controlled Substances Act (hereinafter UCSA), it nonetheless expressly contemplates the existence of "ordinances relating to controlled substances that are consistent" with the UCSA. RCW 69.50.608. No intent to preempt local government authority to enact "ordinances relating to controlled substances" is expressed here inasmuch as the statute expressly grants some measure of concurrent jurisdiction to municipalities. Brown, at 560. Because RCW 69.50.608 grants concurrent jurisdiction to local governments, reliance on the comprehensive nature and structure of the UCSA to show preemption is misplaced. Once an affirmative expression of intent to allow concurrent jurisdiction or, conversely, to occupy the field is shown, arguments based on the necessary implication of statutory language and structure lose their force in the face of the express language of the statute. Brown, at 560. Only the setting of penalties for violations of the controlled substance statutes is preempted, not the ability of local governments to criminalize drug-related activity. The next issue is whether there is a conflict with state law. A direct and irreconcilable conflict with a statute violates Const. art. 11, § 11. Brown, at 561. " ' "In determining whether an ordinance is in 'conflict' with general laws, the test is whether the ordinance permits or licenses that which the statute forbids and prohibits, and vice versa." Bellingham v. Schampera, 57 Wn.2d 106, 111, 356 P.2d 292, 92 A.L.R.2d 192 (1960) (quoting Salt Lk. City v. Kusse, 97 Utah 113, 119, 93 P.2d 671 (1938) (quoting Village of Struthers v. Sokol, 108 Ohio St. 263, 140 N.E. 519 (1923))). The conflict must be direct and irreconcilable with the statute, and the ordinance must yield to the statute if the two cannot be harmonized. Brown, at 560. If the ordinance and statute can be harmonized, then the statute should not be construed as restricting a municipality's power to enact measures relating to controlled substances. Luvene attempts to show that the Tacoma ordinance prohibits the same conduct as the UCSA. He notes that RCW 69.50.407 prohibits attempts and conspiracies to violate the controlled substance statutes. Thus, he concludes that a violation of the Tacoma ordinance also is an attempt or conspiracy to violate the controlled substance statutes. The Tacoma ordinance and RCW 69.50.407 do not prohibit the same conduct. While it is theoretically possible that behavior which satisfies the requirements of the controlled substance statutes could also satisfy the requirements of the Tacoma ordinance, the ordinance prohibits only public drug-related activity. One can attempt to violate, conspire to violate, and then violate the controlled substance statutes in the privacy of their own or someone else's home. However, a violation of the Tacoma drug loitering ordinance can only occur in public. Moreover, proof of a controlled substance, its possession, or its delivery is not required under the Tacoma ordinance, just some actions done in public that manifest an intent to engage in illegal drug activity. Because the Tacoma ordinance does not prohibit the same conduct as the controlled substance statutes, no "direct, irreconcilable" conflict with the controlled substance statutes exists. Neither of the two grounds for preemption having been met, the Tacoma ordinance is not preempted by the controlled substance statutes. III Tacoma Municipal Code (TMC) 8.72.010 is the most recent addition to a class of local ordinances that use loitering to help define a criminal offense. TMC 8.72.010(A) states: It is unlawful for any person to loiter in or near any thoroughfare, place open to the public, or near any public or private place in a manner and under circumstances manifesting the purpose to engage in drug-related activity contrary to any of the provisions of Chapters 69.41, 69.50, or 69.52 of the [RCW], Subsection (B) of the ordinance goes on to list 10 "circumstances which may be considered" to determine if the "purpose" to engage in illegal drug-related activity is "manifested." While we have not yet had to consider the constitutionality of a drug loitering ordinance, other jurisdictions have considered the vagueness and overbreadth problems of drug loitering ordinances. Northern Va. Chapter, ACLU v. Alexandria, 747 F. Supp. 324 (E.D. Va. 1990) (hereafter ACLU v. Alexandria)', see also Akron v. Holley, 55 Ohio Misc. 2d 4, 557 N.E.2d 861 (Mun. Ct. 1989); People v. Pagnotta, 25 N.Y.2d 333, 253 N.E.2d 202, 305 N.Y.S.2d 484 (1969). In the past we have been called upon to determine the constitutionality of prostitution loitering measures. See Seattle v. Slack, 113 Wn.2d 850, 784 P.2d 494 (1989); Seattle v. Jones, 79 Wn.2d 626, 488 P.2d 750 (1971). In the context of vagueness challenges, this court has stressed the importance of the linguistic and structural similarity between the statutory language at issue and the statutory language contained in earlier cases in determining the appropriate precedents. State v. Smith, 111 Wn.2d 1, 13, 759 P.2d 372 (1988) (criticism of vagueness decisions that cite cases " 'not dealing with statutes of similar wording or . . . sphere of operation' ") (quoting Note, The Void-for-Vagueness Doctrine in the Supreme Court, 109 Pa. L. Rev. 67, 71 (1960-1961)). This consideration applies with equal force to a challenge that a statute or ordinance is too broad. The prostitution loitering ordinance upheld in Seattle v. Slack, supra, stated: A person is guilty of prostitution loitering if he or she remains in a public place and intentionally solicits, induces, entices, or procures another to commit prostitution. (Italics ours.) Seattle Municipal Code (SMC) 12A. 10.010(B). The prostitution loitering ordinance we upheld in Slack, however, identified remaining in public while soliciting, inducing, enticing, or procuring another person to commit prostitution as the criminal conduct prohibited by the ordinance. See Slack, at 856. It also identified a mens rea component, intent. Slack, at 855-56. Had the Tacoma ordinance utilized wording and structure similar to that of the prostitution loitering ordinance we upheld in Slack, this case would not present such difficult questions. The language and structure of the Tacoma drug loitering ordinance also depart from the language and structure of the prostitution loitering ordinance upheld in Seattle v. Jones, supra. In Jones, the prostitution ordinance that preceded the Slack prostitution loitering ordinance was attacked as vague. The ordinance at issue in Jones provided: It is unlawful for anyone: . . . [t]o loiter in or near any thoroughfare or place open to the public in a manner and under circumstances manifesting the purpose of inducing, enticing, soliciting or procuring another to commit an act of prostitution. Jones, at 627 (quoting former Seattle City Code 12.49-.010(g)). The ordinance then went on to identify "circumstances which may be considered in determining whether such purpose is manifested". Jones, at 627-28. Luvene correctly observes that the ordinance at issue here does not have similar language or structure as the Seattle prostitution ordinance at issue in Slack. Although the two Seattle prostitution loitering ordinances differ from each other, they actually referred to behavior commonly identified with prostitution. While the language and structure of the Tacoma drug loitering ordinance more closely resembles that of the prostitution loitering ordinance we upheld in Jones, the Tacoma ordinance, unlike any other loitering-based ordinance we have upheld, does not on its face refer to the class of actions commonly identified as illegal drug-related conduct. This linguistic and structural difference lies at the heart of the constitutional challenges in this case. The gravamen of Luvene's vagueness and overbreadth challenges is that the ordinance identifies the actus reus of the prohibited criminal conduct in terms of constitutionally protected conduct. Thus, he argues, the ordinance is impermissibly vague because it fails to identify some overt act in addition to mere loitering, an act which, by itself, cannot be constitutionally punished. As a result, he argues, the ordinance is too indefinite to apprise citizens of the prohibited conduct and to prevent arbitrary and discriminatory law enforcement. He also argues that the ordinance is overbroad because criminal liability for drug loitering is indistinguishable from and in fact defined in terms of constitutionally protected conduct. He concludes that the ordinance thus chills a substantial amount of constitutionally protected conduct. A Overbreadth analysis measures how enactments that prohibit conduct fit with the universe of constitutionally protected conduct. See generally Fallon, Making Sense of Overbreadth, 100 Yale L.J. 853 (1990-1991). A law is overbroad if it sweeps within its prohibitions constitutionally protected free speech activities. Seattle v. Webster, 115 Wn.2d 635, 641, 802 P.2d 1333 (1990), cert. denied, 114 L. Ed. 2d 85 (1991); Seattle v. Slack, 113 Wn.2d 850, 854, 784 P.2d 494 (1989). The first task is to determine whether the enactment reaches a substantial amount of constitutionally protected conduct. Webster, at 641. Criminal statutes require particular scrutiny and may be facially invalid if they " 'make unlawful a substantial amount of constitutionally protected conduct . . . even if they also have legitimate application.' " Seattle v. Huff, 111 Wn.2d 923, 925, 767 P.2d 572 (1989) (upholding Seattle's telephone harassment ordinance) (quoting Houston v. Hill, 482 U.S. 451, 459, 96 L. Ed. 2d 398, 410, 107 S. Ct. 2502 (1987)). An ordinance which regulates behavior, and not pure speech, " 'will not be overturned unless the overbreadth is "both real and substantial in relation to the ordinance's plainly legitimate sweep."'" Webster, at 641 (quoting Seattle v. Eze, 111 Wn.2d 22, 31, 759 P.2d 366 (1988) (quoting O'Day v. King Cy., 109 Wn.2d 796, 804, 749 P.2d 142 (1988))). A statute or ordinance will be overturned only if the court is unable to place a sufficiently limiting construction on a standardless sweep of legislation. Webster, at 641. The threshold inquiry concerns Luvene's standing to attack the ordinance as overbroad on its face. On the basis of his conclusion that petitioner's conduct was within the "hard core" of the ordinance, the superior court judge refused to entertain petitioner's claim that the drug loitering ordinance criminalized constitutionally protected conduct. This was error. Courts will permit third party standing for over-breadth challenges when the law in question chills or burdens constitutionally protected conduct. See, e.g., ACLU v. Alexandria; Akron v. Holley, supra. Because of the importance of First Amendment rights an enactment may be invalidated for overbreadth where it would be unconstitutional as applied to others even if not as applied to the litigant. State v. Motherwell, 114 Wn.2d 353, 370-71, 788 P.2d 1066 (1990). Here, First Amendment activities are implicated by the Tacoma drug loitering ordinance, including freedom of expressive association and freedom of movement. We do not require others to risk criminal sanction or forgo constitutionally protected conduct. The ordinance can be read as prohibiting loitering done without the intent to commit an illegal act. Moreover, the act of mere loitering is an inherent component of political canvassing and other nonpolitical forms of expressive asso ciation. Also unclear from the face of the ordinance is whether or not any conduct typically associated with the buying, selling or use of illegal drugs done in addition to mere loitering is required for the police to arrest someone for drug loitering. Given the procedural posture of petitioner's overbreadth challenge, his overbreadth claim raises pure questions of law. As commentators have noted, when a person convicted under a criminal statute or ordinance challenges the law as overbroad, he or she essentially asserts that his or her conviction rests on an unconstitutional law. See Fallon, Making Sense of Overbreadth, 100 Yale L.J. 853, 856, 874-75 (1990-1991); Monaghan, Overbreadth, 1981 Sup. Ct. Rev. 1, 3. In this context no prudential purpose is served by refusing to entertain a claim that an ordinance is overbroad. When First Amendment and other constitutionally protected forms of conduct are chilled or burdened, there is likely to be no other better plaintiff than one who has been convicted under an allegedly unconstitutional measure. Thus, Luvene has standing to raise the claim that the ordinance is overbroad on its face. B Petitioner's overbreadth claim raises two important questions. First, does the ordinance prohibit constitutionally protected activity? Second, if it does prohibit constitutionally protected conduct, does it prohibit a "real and substantial" amount of protected conduct? If possible, an enactment must be interpreted in a manner which upholds its constitutionality. State v. Dixon, 78 Wn.2d 796, 804, 479 P.2d 931 (1971). Luvene argues that two aspects of the ordinance create overbreadth problems: lack of a clearly identified mens rea component and no requirement that the police observe action in addition to loitering in order for a person to be arrested for drug loitering. With regard to the need for an identified mens rea element, petitioner argues that on the face of the ordinance, all that is required for arrest is that the police feel that one is loitering "in a manner and under circumstances manifesting the purpose" to engage in violations of the various controlled substance statutes. With regard to the action in addition to loitering, petitioner argues that while the circumstances section of the ordinance sets out 10 categories of factors that may be considered in determining if the purpose is manifested, only 4 of these circumstances identify any overt act in addition to loitering. These two problems, petitioner concludes, impermissibly extend the reach of the ordinance into the constitutionally protected area of expressive association and freedom of movement. As a general matter, an ordinance that prohibits loitering may survive an overbreadth challenge if it requires the specific intent to engage in an illicit act. Slack, at 855; ACLU v. Alexandria, at 326-27. The Tacoma drug loitering ordinance does contain a mens rea component, specifically the "purpose" to engage in drug-related activity. In Seattle v. Jones, supra, we construed the word "purpose" in a similar context to require the mental state of intent. Jones, at 629. Because of the similar language and context that the Tacoma drug loitering ordinance shares with the Jones prostitution loitering ordinance, it is appropriate to transpose that construction of "purpose" from Jones to the case now at hand. Therefore, as construed, we reject the interpretation of the ordinance to prohibit conduct that only appears to be drug related, regardless of the person's actual intent. To be constitutional the ordinance must prohibit loitering while possessing the intent to engage in unlawful drug activity. If the police observe identifiable, articulable conduct in addition to mere loitering that is consistent with the intent to engage in unlawful drug activity, the ordinance is constitutionally valid. The question Luvene raises — whether an ordinance which fails to require some overt act in addition to mere loitering is overbroad — was not at issue in Slack. The prostitution loitering ordinance in Slack contained language — the verbs solicit, induce, entice, and procure — which required some action in addition to loitering. The Tacoma ordinance uses the phrase "in a manner and under circumstances manifesting" rather than specifying particular acts that belong to a general category of prohibited conduct. The string of verbs and pronoun "another" that Tacoma edited out of the language approved in Slack (and Jones) helped to define the universe of prohibited conduct in prostitution loitering ordinances. Our interpretation of the Tacoma drug loitering ordinance's mens rea component places an overt act requirement in the ordinance and meets the petitioner's criticisms. The use of the word "manifesting" in the ordinance indicates that some overt conduct performed while loitering is necessary to determine if a person has the intent to engage in illegal drug-related activity. While we do not feel that this deletion expands the universe of prohibited conduct that is narrowed by the specific intent requirement, the paring down of the language approved in Slack and Jones concerns us. Tacoma assumes that subtracting the series of specific acts and "another" from the language of the ordinance in Jones makes no difference to the overbreadth analysis. While the potential overbreadth of the ordinance is diminished by the intent requirement, it is critical that the culpable mental state coexist with identifiable, articu lable conduct reasonably consistent with the intent to buy, sell, or use illegal drugs. Otherwise, the ordinance does not distinguish between the innocent intent to merely loiter and the culpable intent to engage in unlawful drug-related activity. As interpreted and limited, the Tacoma drug loitering ordinance is not unconstitutionally overbroad. By requiring specific intent and overt acts, the ordinance does not then reach into the arena of constitutionally protected First Amendment conduct. It prohibits soliciting, enticing, inducing, or procuring another to exchange, buy, sell, or use illegal drugs or drug paraphernalia. IV A vagueness challenge seeks to vindicate two principles of due process: the need to define prohibited conduct with sufficient specificity to put citizens on notice of what conduct they must avoid, and the need to prevent arbitrary and discriminatory law enforcement. Seattle v. Webster, supra at 642-43; State v. Smith, 111 Wn.2d 1, 4-5, 759 P.2d 372 (1988). A statute is void for vagueness if it is framed in terms so vague that persons of common intelligence must necessarily guess at its meaning and differ as to its applicability. Spokane v. Douglass, 115 Wn.2d 171, 177, 795 P.2d 693 (1990). Impossible standards of specificity are not required. When a municipal ordinance is challenged as facially vague, a duly enacted ordinance is presumed to be constitutional. Spokane v. Douglass, supra. Moreover, an enactment is not facially vague if it is susceptible to a constitutional interpretation. State v. Miller, 103 Wn.2d 792, 794, 698 P.2d 554 (1985). A The threshold inquiry here concerns Luvene's standing to attack the ordinance as facially vague. In the context of civilian society, the United States Supreme Court has allowed a criminal defendant whose conduct fell within the "hard core" of the statute to bring a claim that the statute was facially vague. Compare Kolender v. Lawson, 461 U.S. 352, 75 L. Ed. 2d 903, 103 S. Ct. 1855 (1983) (person convicted under Cal. Penal Code § 647(e) had standing to assert that statute is vague on its face) with Parker v. Levy, 417 U.S. 733, 756, 41 L. Ed. 2d 439, 94 S. Ct. 2547 (1974) (military officer convicted under articles 90(a), 133, and 134 of Uniform Code of Military Justice, 10 U.S.C. §§ 801 et seq., had no standing to assert that the articles were vague on their face). Vagueness challenges are chiefly concerned with arbitrary enforcement. See Kolender, at 358. From the face of the ordinance it is unclear what actual limits the ordinance places on police discretion. Because subsection (A) of the Tacoma drug loitering ordinance does not identify the types of acts it prohibits, a number of different acts could conceivably satisfy the ordinance's intent requirement. B The definiteness prong of the void-for-vagueness doctrine requires that an enactment pass the common intelli gence test. An enactment is void for vagueness if " 'persons of common intelligence must necessarily guess at its meaning and differ as to its application.' " State v. Smith, supra at 7 (quoting State v. White, 97 Wn.2d 92, 98-99, 640 P.2d 1061 (1982)). Because the Tacoma drug loitering ordinance lacks a phrase comparable to "soliciting, enticing, inducing, or procuring another", Luvene argues that subsection (A) of the Tacoma drug loitering ordinance fails to identify or articulate any prohibited conduct other than mere loitering. While we find this to be a substantive rather than a merely grammatical difference, we find that the ordinance can be interpreted to prohibit conduct beyond mere loitering. In this context, we read the term "manifesting" as signifying that, while loitering, a person must perform objectively ascertainable, overt conduct that is commonly associated with illegal drug-related activity, such as soliciting, enticing, inducing, or procuring another person to exchange, buy, sell, or use illegal drugs or drug paraphernalia. Furthermore, this conduct, which is in addition to loitering, must be done for the purpose of engaging in illegal drug-related activity. As thus construed, the ordinance passes the common intelligence test of the vagueness doctrine's definiteness prong. A person of common and ordinary intelligence will be able to read the ordinance and the cases applying it and determine that he or she cannot loiter in public and perform actions commonly associated with the exchange, buying, selling, or use of illegal drugs and drug paraphernalia. This interpretation of the ordinance provides fair warning to those who read the ordinance and the cases interpreting it that such acts violate the Tacoma drug loitering ordinance. C This corut's prior decisions do not support Luvene's position that the ordinance does not contain adequate standards to guide law enforcement. The terms defining the standards for a violation must not be " 'inherently subjective in the context in which they are used.'" Spokane v. Douglass, supra at 181 (quoting State v. Worrell, 111 Wn.2d 537, 544, 761 P.2d 56 (1988)). Prior decisions of this court have upheld enactments against vagueness challenges that allow the police to make a subjective evaluation to determine if a violation has occurred. See Spokane v. Douglass, supra; State v. Maciolek, 101 Wn.2d 259, 267, 676 P.2d 996 (1984) (due process prohibits police officers, judges, and juries from subjectively deciding what conduct complies with a statute in a given case). Also, prior decisions have stated that an intent element in an enactment provides a sufficient limit on police discretion. E.g., Seattle v. Slack, 113 Wn.2d 850, 784 P.2d 494 (1989). As interpreted, the ordinance requires the intent to engage in drug-related activity and an additional overt act besides loitering. See section III(B). The practical effect of this intent requirement is to require the police to observe overt conduct that is consistent with the intent to engage in illegal drug-related activity in addition to mere loitering. With this intent and overt act requirement, the evaluation entrusted to the police by the Tacoma drug loitering ordinance is not inherently subjective. The police evaluation is directed toward those overt actions which manifest the intent to exchange, buy, sell, or use illegal drugs or drug paraphernalia. The police evaluation is based on their observation of articulable, identifiable conduct that is consistent with the buying, selling, and using of illegal drugs, not their personal whim or fancy. Nevertheless, petitioner argues that the reasoning in Bellevue v. Miller, 85 Wn.2d 539, 536 P.2d 603 (1975) applies here. In Bellevue, the court struck down an ordinance which prohibited wandering and prowling "in a place, at a time, or in a manner, and under circumstances, which manifest an unlawful purpose". Bellevue, at 542. The ordinance also had a fist of circumstances evidencing an unlawful purpose. The problem with the ordinance at issue in Bellevue was the indefiniteness that flowed from the terms "wandering" and "prowling" and "unlawful". See Maciolek, at 267-68. The main vice of the ordinance was not that its indefiniteness failed to give adequate notice of the prohibited conduct, but that it presented too much potential for arbitrary and discriminatory law enforcement by placing "no actual limitations ... on the exercise of police discretion." Bellevue, at 545. The ordinance permitted arrest on the mere suspicion that á person has been or is likely to become involved in unlawful activity. Bellevue, at 546. The Tacoma ordinance does not permit the police to arrest a loiterer on the mere suspicion that he or she has the intent to buy, sell, or use illegal drugs. The Tacoma drug loitering ordinance is not void for vagueness. It prohibits remaining in public while intentionally soliciting, enticing, inducing, or procuring another person to exchange, sell, buy, or use illegal drugs or drug paraphernalia. The ordinance does have different linguistic and structural characteristics than similar loitering-based ordinances we have upheld in the past. By adding our construction, these differences are not so great that they require us to invalidate the ordinance. V Luvene contends that the police report alone does not contain sufficient evidence of each element of the crime of drug loitering to sustain his conviction. Luvene did not raise the issue of the sufficiency of the evidence until his petition for review in this court, but this does not preclude consideration of the issue. Due process requires that the State prove each element of its criminal case beyond a reasonable doubt. In re Winship, 397 U.S. 358, 25 L. Ed. 2d 368, 90 S. Ct. 1068 (1970). This is a question of constitutional magnitude and can be raised initially on appeal. Seattle v. Slack, supra at 859. The accepted test is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. State v. Little, 116 Wn.2d 488, 491, 806 P.2d 749 (1991). As construed, a conviction under the ordinance requires proof beyond a reasonable doubt that a person (1) loiter (2) in or near a thoroughfare, a place open to the public, or near a public or private place and (3) intentionally solicit, entice, induce or procure another person to exchange, buy, sell, or use illegal drugs or drug paraphernalia. The police report shows that Luvene was in the middle of a street and on a sidewalk for nearly an hour in an area known to be an area of drug trafficking, waving his arms at passing cars; standing by a stopped car and looking around as the person next to him exchanged what looked to be like rock cocaine for paper money with an occupant of the stopped car; and acting as a "lookout" for one of his companions who was smoking a crack pipe. Luvene performed these acts on a public street and in the presence of a police officer. Intent may be inferred from circumstantial evidence. State v. Caliguri, 99 Wn.2d 501, 506, 664 P.2d 466 (1983). Luvene was trying to flag down potential customers for illegal drugs. Active members of criminal street gangs typically exchange various drugs for money or sometimes use drugs while one or more persons scout the area for any concealed or approaching police officers. A rational trier of fact could conclude in this case that Luvene intended the natural and probable consequences of his acts. See Caliguri. Because petitioner's behavior is consistent with the acts that precede the exchange, sale, and use of illegal drugs and drug paraphernalia by members of criminal street gangs, we find there is sufficient evidence to sustain his conviction for drug loitering. VI Luvene argues that the Tacoma drug loitering ordinance should be invalidated because it contains an inadequate emergency clause. Specifically, Luvene contends that the emergency measure in Tacoma's ordinance circumvents the public's right to referendum contained in article 2, section 1(b) of the Washington Constitution and article 2, sections 2.18-2.25 of the Tacoma City Charter. We find the emergency clause adequate. This court has allowed the Legislature to bypass the people's referendum power through emergency legislation. State ex rel. Hamilton v. Martin, 173 Wash. 249, 23 P.2d 1 (1933). Legislative declarations of fact, such as the existence of an emergency, are deemed conclusive unless they are "obviously false and a palpable attempt at dissimulation." Martin, 173 Wash, at 257. In determining the truth or falsity of a legislative declaration, the court "will enter upon no inquiry as to the facts, but must consider the question from what appears upon the face of the act, aided by its judicial knowledge." Martin, 173 Wash, at 257; see also State ex rel. Humiston v. Meyers, 61 Wn.2d 772, 778, 380 P.2d 735 (1963). After hearing public comments, the Tacoma City Council adopted a drug loitering ordinance with the following emergency clause: That time is of the essence in this matter because the City's drug problems are increasing rapidly, causing imminent danger to the public health and safety and to property in the area where drug use is taking place; therefore, an emergency is hereby declared to exist, making necessary the passage of this ordinance and its taking effect immediately upon publication. Tacoma Ordinance 24167, § 2. The Superior Court judge properly noted that there was no evidence of falsehood or dissimulation behind the emergency clause. Decision of the Superior Court, at 3. We find this persuasive. Dore, C.J., and Brachtenbach, Dolliver, Durham, Smith, and Johnson, JJ., concur. Andersen, J., concurs in the result. The Uniform Controlled Substances Act, Laws of 1971, 1st Ex. Sess., ch. 308, is codified in RCW 69.50. TMC 8.72.010(B) states: "Among the circumstances which may be considered in determining whether such purpose is manifested are: "1. Such person is a known unlawful drug user, possessor, or seller. For purposes of this chapter, a 'known unlawful drug user, possessor, or seller' is a person who has, within the knowledge of the arresting officer, been convicted in any court within this state of any violation involving the use, possession, or sale of any [controlled substance]. . .; or a person who displays physical characteristics of drug intoxication or usage, such as 'needle tracks'; or a person who possesses drug paraphernalia as defined in Section 8.29 of the [Tacoma Municipal Code]; "2. Such person is currently subject to an order prohibiting his/her presence in a high drug activity geographic area; "3. Such person behaves in such a manner as to raise a reasonable suspicion that he or she is about to engage in or is then engaged in an unlawful drug-related activity, including by way of example only, such person acting as a 'lookout'; ”4. Such person is physically identified by the officer as a member of a 'gang,' or association which has as its purpose illegal drug activity; "5. Such person transfers small objects or packages for currency in a furtive fashion; "6. Such person takes flight upon the appearance of a police officer; "7. Such person manifestly endeavors to conceal himself or herself or any object which could reasonably be involved in an unlawful drug-related activity; ”8. The area involved is by public repute known to be an area of unlawful drug use and trafficking; "9. The premises involved are known to have been reported to law enforcement as a place suspected of drug activity pursuant to [RCW 69.53]; "10. Any vehicle involved is registered to a known unlawful drug user, possessor, or seller, or a person for whom there is an outstanding warrant for a crime involving drug-related activity." The Seattle drug-traffic loitering ordinance, SMC 12A.20.050, is one such ordinance similarly structured to the Seattle prostitution loitering ordinance upheld in Slack. The key portions of the Tacoma drug loitering ordinance are identical to those of the Akron, Ohio, drug loitering ordinance upheld in Akron v. Holley, supra. See Akron v. Holley, supra at 10-11. Akron v. Holley, supra, however, is not the opinion of a state appellate court, but only the published memorandum decision of a municipal court from which no appeal was taken. The First Amendment right of expressive association encompasses association to engage in political and nonpolitical speech. Dallas v. Stanglin, 490 U.S. 19, 104 L. Ed. 2d 18, 109 S. Ct. 1591 (1989); Swank v. Smart, 898 F.2d 1247, 1251 (7th Cir. 1990). Moreover, the right to walk, stroll, or wander aimlessly is a liberty "within the sensitive First Amendment area" that is protected by the Fourteenth Amendment. Papachristou v. Jacksonville, 405 U.S. 156, 164-65, 31 L. Ed. 2d 110, 92 S. Ct. 839 (1972). Petitioner had been convicted of drug loitering when he appealed to the Pierce County Superior Court. These include behaving in a way that reasonably suggests one is engaging or about to engage in unlawful drug-related activity; furtively transferring small objects or packages for money; fleeing upon appearance of a police officer; and concealing oneself or some object that could reasonably be involved in unlawful drug-related activity. See TMC 8.72.010(B)(3), (5)-(7) (quoted in footnote 2). Seattle Municipal Code 12A.10.010(B) provides: "A person is guilty of prostitution loitering if he or she remains in a public place and intentionally solicits, induces, entices, or procures another to commit prostitution." We find petitioner’s argument to adopt the reasoning of Coleman v. Richmond, 5 Va. App. 459, 364 S.E.2d 239 (1988) unpersuasive. The court in Coleman found a prostitution loitering ordinance similar to the one in Seattle v. Jones, supra, to be overbroad. The Coleman court reasoned that the circumstances were sufficient in and of themselves to manifest the intent to engage in prostitution. ACLU v. Alexandria, at 327 (citing Coleman, at 243). Thus, any person who committed the acts described in the circumstances section was deemed to have the intent to engage in prostitution. ACLU v. Alexandria, at 327. We, however, took a different view of the nature of the circumstances section in Slack, as we do here also. The circumstances described in subsection (B) of the Tacoma drug loitering ordinance are not sufficient standing alone to manifest the intent to engage in illegal drug-related activity. The Kolender majority rejected the dissenters' view that a claim of facial vagueness is allowed only when a defendant's conduct falls outside the hard core of the statute. See Kolender, at 358 n.8. In footnote 8, the Supreme Court distinguished Parker v. Levy, supra, and Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 71 L. Ed. 2d 362, 102 S. Ct. 1186 (1982), two of its precedents relied upon by the dissenters in Kolender. Justice O'Connor observed that in Parker "we deliberately applied a less stringent vagueness analysis '[bjecause of the factors differentiating military society from civilian society.' " Justice O'Connor noted that Hoffman Estates "reaffirm[ed] the validity of facial challenges in situations where free speech or free association are affected". Kolender, at 359; see Hoffman Estates, at 494. As such, Bellevue v. Miller, supra, stands for the proposition that the primary concern of the vagueness doctrine is "the lack of effective limits on police discretion." See, e.g., Kolender v. Lawson, supra. In Bellevue, we essentially determined that the ordinance had no "hard core” because it placed no actual limits on police discretion. It logically follows that an ordinance which fails to give law enforcement sufficiently clear notice of the prohibited conduct does not give the general population notice of the conduct it purports to prohibit. See generally Dan-Cohen, Decision Rules and Conduct Rules: On Acoustic Separation in Criminal Law, 97 Harv. L. Rev. 625, 648-64 (1984) (analyzing the void-for-vagueness doctrine in terms of a distinction between conduct rules directed toward the population at large and decision rules directed toward a particular professional and legal audience). However, the reasoning in Bellevue v. Miller, supra, should not be read to imply that broadly worded criminal laws with a reasonably definite focus are unconstitutionally vague. We explicitly stated that "where a prohibition is directed to identifiable, articulable conduct . . . the statute or ordinance will be sustained against a void-for-vagueness challenge." (Citations omitted.) Bellevue, at 547. Luvene also argues that the words "gang" and "member" in TMC 8.72-.010(B)(4) are inherently vague. We do not agree. With regard to the vagueness of the word "member", much of the uncertainty associated with this term has been dispelled through court decisions construing the word in other statutory contexts. While the Supreme Court in Lanzetta v. New Jersey, 306 U.S. 451, 83 L. Ed. 888, 59 S. Ct. 618 (1939) found the phrase "known to be a member" of a gang ambiguous and held the statute at issue to be overbroad, subsequent decisions have resolved the ambiguity associated with the word "member". The Court in Scales v. United States, 367 U.S. 203, 223, 6 L. Ed. 2d 782, 81 S. Ct. 1469 (1961) held that a "member" cannot be subjected to criminal liability for the act of the association to which he is a member unless he is an "active" member. See also Seattle v. Slack, supra (Seattle prostitution loitering ordinance did not criminalize mere status of being a known prostitute). Thus, active membership requires one to be more than a "nominal, passive, inactive, or purely technical" member. Scales, at 254-55 & n.29. Moreover, this interpretation of member makes the ordinance less susceptible to arbitrary enforcement by law enforcement because its practical effect is to require the alleged member to commit some act indicative of "active" membership. We also do not find the term "gang" unconstitutionally vague. The Lametta Court did not hold that the use of the term "gang” in a criminal statute made the statute vague. Bather, it held that it made the statute overbroad. See Lametta, at 457. The fact that a statute is overbroad does not, as a logical matter, necessarily entail that its terms are vague. As used in the Tacoma ordinance, "gang” means a "criminal street gang". Cf. Cal. Penal Code § 186-.22(f) (definition of "criminal street gang"). While these are legal definitions, they generally comport with the ordinary usage of those terms. Giving the terms "member" and "gang" a "sensible, meaningful, and practical interpretation," Spokane v. Douglass, supra at 180, is proper here since the ordinance is directed toward criminalizing the activities associated with the "open air drug markets" conducted by criminal street gangs.

The opinion of the court was delivered by Scott, J. The appellant filed its complaint in the superior court of Pierce county, to which the respondents interposed a demurrer, which was sustained by the court, and appellant was granted ten days to amend. After the lapse of said time, no further proceedings having been had, the respondents moved said court for an order adjudging appellant to be in default, and for a dismissal of the action, whereupon the court entered an order accordingly, and dismissed the action. This motion was not resisted, nor was any motion made to set said judgment aside. With the record in this condition, appellant, took its appeal. The respondents moved to dismiss said appeal, for the reason that none would lie from the judgment entered, and we are of the opinion that this motion must prevail. Appellant contends that it did not desire to amend the pleading, that the sustaining of the demurrer and subsequent dismissal of said cause was, in effect, an adjudication of its rights upon the merits, and that it was its intention to appeal therefrom to test the validity thereof in this court. However this may be, the status of the case here must depend upon the record as made in the lower court, and there is nothing on the face of the record to indicate appellant’s contention in anywise; excepting the bare fact that an appeal was taken as stated. An appeal will not lie direct from a judgment of dismissal for want of prosecution, and it must be dismissed. Dunbar, C. J., and Hoyt, Anders and Stiles, JJ., concur.

Dolliver, J. Defendant, Charles S. Grewe, has been convicted of two counts of indecent liberties and one count of attempted first degree statutory rape. The trial court concluded defendant used a position of trust to commit the crimes and a sentence within the standard range would clearly be too lenient. Based on these aggravating factors, the trial court imposed an exceptional sentence of 60 months on each count to be served concurrently. This appeal focuses exclusively on the propriety of the exceptional sentences. When defendant committed the acts leading to the indecent liberties convictions, he was employed as a school bus driver for Silver Lake Elementary School. Both instances of indecent liberties occurred when the victims were either waiting for or riding on defendant's school bus. The indecent liberties victims were both age 11 at the time of the incidents. The attempted statutory rape victim was an 8-year-old girl who lived next door to defendant. The victim and other neighborhood children often went to defendant's house to play with his piano and computer. On one occasion when the victim was alone in the house with defendant, he placed his hand inside the victim's pants and attempted to put his finger into her vagina. The victim hit defendant in the face and ran away. The Court of Appeals found the trial court improperly considered uncharged incidents in imposing the exceptional sentences and vacated the sentences and remanded defendant for resentencing. State v. Grewe, 59 Wn. App. 141, 796 P.2d 438 (1990). The State does not challenge this conclusion. The State does challenge the Court of Appeals' conclusion that abuse of a position of trust may not properly be considered as an aggravating factor for the indecent liberties convictions because it was already taken into consideration in establishing the standard sentence range. Grewe, 59 Wn. App. at 150. Defendant challenges the Court of Appeals' conclusion that with respect to the statutory rape conviction abuse of a position of trust was supported by the evidence. Grewe, 59 Wn. App. at 148. Under the Sentencing Reform Act of 1981 (SRA), a trial court must impose a sentence within the standard range unless it finds substantial and compelling reasons to justify a departure. RCW 9.94A. 120(2), (3); State v. Pryor, 115 Wn.2d 445, 450, 799 P.2d 244 (1990). Appellate review of an exceptional sentence involves a 3-step process: (1) are the trial court's reasons supported by the record, (2) do the stated reasons justify an exceptional sentence as a matter of law, and (3) did the trial court abuse its discretion by imposing a sentence that is "clearly excessive" or "clearly too lenient"? State v. Nordby, 106 Wn.2d 514, 517-18, 723 P.2d 1117 (1986); State v. Oxborrow, 106 Wn.2d 525, 529-30, 723 P.2d 1123 (1986). Either the defendant or the State may appeal an exceptional sentence. RCW 9.94A.210(2). The State's challenge with respect to the indecent liberties sentences focuses on step (2). Defendant's challenge with respect to the statutory rape sentence focuses on step (1). 1. Indecent Liberties and Abuse of a Position of Trust Defendant was convicted of indecent liberties under former RCW 9A.44.100(1), which provided four distinct means by which a person could commit the crime: (a) By forcible compulsion; or (b) When the other person is less than fourteen years of age; or (c) When the other person is less than sixteen years of age and the perpetrator is more than forty-eight months older than the person and is in a position of authority over the person', or (d) When the other person is incapable of consent by reason of being mentally defective, mentally incapacitated, or physically helpless. (Italics ours.) Defendant was charged and convicted under former RCW 9A.44.100(l)(b). Nevertheless, the Court of Appeals concluded abuse of a position of trust was not an appropriate aggravating factor for sentencing. The Court of Appeals looked to former RCW 9A.44.100(l)(c), which did expressly require a position of authority, and concluded the Legislature had already considered the abuse of a position of trust when establishing the standard sentence range for the indecent liberties statute as a whole. Grewe, 59 Wn. App. at 149. The Court of Appeals' ruling addresses the legal adequacy of the asserted aggravating factor. We review such a determination using a "matter of law" standard. State v. Dunaway, 109 Wn.2d 207, 218, 743 P.2d 1237, 749 P.2d 160 (1987). In our review as to the legal adequacy of an aggravating factor, we employ a 2-part analysis. First, a trial court may not base an exceptional sentence on factors necessarily considered by the Legislature in estab lishing the standard sentence range. Second, the asserted aggravating factor must be sufficiently substantial and compelling to distinguish the crime in question from others in the same category. Dunaway, 109 Wn.2d at 218-19; Nordby, 106 Wn.2d at 518; State v. Dunivan, 57 Wn. App. 332, 337, 788 P.2d 576 (1990). Defendant does not challenge the existence of a position of trust, nor that an abuse of a position of trust may be a proper aggravating factor in some situations. See State v. Oxborrow, 106 Wn.2d at 529 (theft by deception); State v. Creekmore, 55 Wn. App. 852, 862, 783 P.2d 1068 (1989) (felony murder), review denied, 114 Wn.2d 1020 (1990); State v. Strauss, 54 Wn. App. 408, 420-21, 773 P.2d 898 (1989) (rape). Abuse of a position of trust has been expressly extended to apply to sexual offense cases. Pryor, 115 Wn.2d at 451; State v. Harp, 43 Wn. App. 340, 343, 717 P.2d 282 (1986). Nevertheless, defendant argues abuse of a position of trust is not an appropriate aggravating factor for an indecent liberties conviction because one of the four alternative methods of committing the crime includes a position of authority as an element. The essential question here is whether, in setting the standard sentencing range for indecent liberties, the Legislature considered the alternative forms of the crime individually or collectively. Defendant argues that because the Legislature established the same seriousness level for alternative forms (b), (c), and (d) of indecent liberties, the Legislature necessarily considered the elements of alternative method (c) in establishing the standard sentence range for alternative (b). See former RCW 9.94A.320. This analysis, however, requires a strained interpretation of the statute. Given the existence of defendant's position of authority as a school bus driver, he could have been charged under either alternative (b) or (c). However, since both indecent liberties victims were under the age of 14, the prosecutor elected to proceed solely under alternative (b) because it required proof of fewer elements. Under former RCW 9A.44.100(l)(b), a position of trust or authority was not required — the crime could be committed equally by a stranger or a person in a position of trust. A position of trust becomes relevant only when the victim is between the ages of 14 and 16. The Legislature itself created this distinction. Therefore, the Legislature did not likely consider the abuse of a position of trust in setting the standard sentence range for alternative (b). The cases cited for support by the Court of Appeals are not applicable because each involves double counting of an element of the crime actually charged, not an alternative method of committing the same crime. See Grewe, 59 Wn. App. at 149. Although the case is not cited for this purpose by either of the parties or the court below, we have already spoken directly on this subject. In State v. Fisher, 108 Wn.2d 419, 739 P.2d 683 (1987), we reviewed four aggravating factors supporting an exceptional sentence for indecent liberties under this very statute. One of those aggravating factors was abuse of a position of trust. Although we failed to reach the question of whether the evidence was sufficient to support the existence of the relationship, we did state in dicta that abuse of a position of trust was an appropriate aggravating factor for indecent liberties under former RCW 9A.44.100(l)(b). Fisher, 108 Wn.2d at 427. Division Two of the Court of Appeals has also accepted abuse of a position of trust as an aggravating factor for an indecent liberties conviction under former RCW 9A.44.100(l)(b). State v. Brown, 55 Wn. App. 738, 754, 780 P.2d 880 (1989), review denied, 114 Wn.2d 1014 (1990); Harp, 43 Wn. App. at 343. Therefore, although none of the parties discuss these cases, the issue has largely been settled. By drafting alternative forms of the same crime, the Legislature manifested its belief a particular crime could be achieved by distinct combinations of elements. Where a single criminal act includes all of the elements of one form of the crime as well as additional discrete elements from an alternative form, the crime exceeds that contem plated by the Legislature. In drafting former RCW 9A.44-.100(1), the Legislature viewed a position of authority as a necessary element only where the victim is between the ages of 14 and 16. Where a position of trust is abused when a child is under 14, a crime exceeding the Legislature's contemplation has been committed meriting an exceptional sentence. We reverse the Court of Appeals on this issue. 2. Statutory Rape Sentence The trial court also found abuse of a position of trust to justify an exceptional sentence for the statutory rape conviction. The Court of Appeals affirmed. Grewe, 59 Wn. App. at 148. Defendant challenges this conclusion and argues his relationship with the victim was insufficient to establish a position of trust. Defendant's challenge asks for a factual determination. Therefore, we apply a clearly erroneous standard to the trial court's findings. State v. Nordby, 106 Wn.2d 514, 517-18, 723 P.2d 1117 (1986). We will reverse the trial court's findings only if no substantial evidence supports its conclusion. Burba v. Vancouver, 113 Wn.2d 800, 807, 783 P.2d 1056 (1989). The two factors to be considered in determining whether defendant abused a sufficient position of trust to merit an exceptional sentence are the duration and the degree of the relationship. Fisher, 108 Wn.2d at 427. In Fisher, the defendant sexually assaulted a 5%-year-old boy who asked the defendant to accompany him to the rest room. The victim testified that either his father or mother usually accompanied him to the rest room. Fisher, 108 Wn.2d at 427. However, the victim met the defendant only a few days prior to the incident while swimming in the pool at his grandparents' trailer court. We concluded that whether the evidence was sufficient to find the defendant had abused a position of trust was "a close question". Fisher, 108 Wn.2d at 427. Although we never settled that question, we did suggest, A relationship extending over a longer period of time, or one within the same household, would indicate a more significant trust relationship, such that the offender's abuse of that relationship would be a more substantial reason for imposing an exceptional sentence. Fisher, 108 Wn.2d at 427. In this case, the victim had known defendant for approximately 4 months prior to the crime. Furthermore, during that time, the victim was a frequent visitor in defendant's home where she played with defendant's computer and piano. Therefore, the relationship here exceeded that in Fisher. Based on our dicta in Fisher, this record presents substantial evidence to support the trial court's finding defendant abused a position of trust. Our conclusion is consistent with previous decisions from the Court of Appeals. While we have considered the evidence necessary to establish a position of trust only once, the Court of Appeals has considered the question several times. In one of the first cases to consider abuse of a position of trust as an aggravating factor in a noneconomic setting, Division One of the Court of Appeals adopted a very broad, inclusive standard. The court concluded a position of trust did not require a degree of trust "significantly greater than that involved in the usual social or business relationship." State v. Jackmon, 55 Wn. App. 562, 568, 778 P.2d 1079 (1989). More recently, the Court of Appeals has guarded against attempts to render the definition of a position of trust overly inclusive. The most significant of these cases for our purposes is State v. Brown, 60 Wn. App. 60, 802 P.2d 803 (1990), review denied, 116 Wn.2d 1025 (1991). Brown involved review of an assault conviction sentence in which the Court of Appeals refused to find a sufficient relationship of trust between an 11-year-old boy and his father. The court interpreted our decisions in Pryor, 115 Wn.2d at 451 and Fisher, 108 Wn.2d at 427 as well as Harp, 43 Wn. App. at 343, to focus on the trust relationship between the primary care giver and the perpetrator to whom the child's care was entrusted. Brown, 60 Wn. App. at 74-76. Therefore, the court concluded the only position of trust relevant to exceptional sentences in crimes perpetrated by adults against children is that between the perpetrator and the primary care giver who entrusts the child's care to the perpetrator, not the trust relationship between the child victim and the perpetrator. We disagree. While we share the Court of Appeals' belief not every crime committed by a parent against a child involves an abuse of a position of trust, we do not approve of the court's exclusive focus on the trust between the primary care giver and the adult perpetrator. Although the trust between the primary care giver and the perpetrator may also give rise to a trust relationship subject to abuse, that relationship is secondary to the trust between the perpetrator and the child victim. It is the trust between the perpetrator and the victim which renders the victim particularly vulnerable to the crime. See State v. Shephard, 53 Wn. App. 194, 199, 766 P.2d 467 (1988) (discussed in Brown, 60 Wn. App. at 75). Defendant also cites State v. Stuhr, 58 Wn. App. 660, 794 P.2d 1297 (1990) and State v. Campas, 59 Wn. App. 561, 799 P.2d 744 (1990) to argue the relationship here was insufficient to establish a position of trust. In Stuhr, the court refused to find a position of trust where defendant was living in the home of his 80-year-old, legally blind victim. The court concluded: If we were to conclude that this tenuous, transient relationship equates with enjoying a position of trust and confidence, it is difficult to say where the line could be drawn. Stuhr, 58 Wn. App. at 663. Similarly, in Campas, the court refused to find a position of trust where the defendant met the victim in a bar on the night of the crime and later murdered the victim when the victim took the defendant to her home. Campas, 59 Wn. App. at 567. The State argues with substantial merit that the defendant's 4-month relationship with the victim here exceeded that in either Stuhr or Campas. However, the element which truly distinguishes this case is the victim's age. The case law of this state consistently acknowledges children as among the most vulnerable members of society. Fisher, 108 Wn.2d at 424; Brown, 55 Wn. App. at 753-54. One aspect of children's extreme vulnerability is their tendency to trust. See Shephard, 53 Wn. App. at 199. Arguably, defendant preyed upon this tendency by luring the victim into his house to play with his piano and computer, thereby establishing a relationship of trust. We cannot say the trial court's finding that defendant abused a position of trust when he committed the attempted statutory rape was clearly erroneous. Therefore, the Court of Appeals must be affirmed on this issue. Although we have approved the aggravating factors challenged here, the Court of Appeals also determined the trial court improperly considered three uncharged crimes in imposing the exceptional sentence. Because of this, three of the seven findings of fact entered by the trial court to support the exceptional sentence were invalidated. Grewe, 59 Wn. App. at 146. The Court of Appeals remanded for resentencing on this basis alone. Grewe, 59 Wn. App. at 151. Neither party challenges this conclusion. Therefore, remand for resentencing is still required. Dore, C.J., and Utter, Brachtenbach, Andersen, Durham, Smith, Guy, and Johnson, JJ., concur.

Weaver, J. The jury returned a verdict for defendants. Plaintiff appeals from a judgment dismissing his action. Appellant assigns as error the trial court’s denial of his motion for judgment notwithstanding the verdict of the jury for the reason that there was neither evidence nor reasonable inference from the evidence to justify the verdict. In Omeitt v. Department of Labor & Industries, 21 Wn. (2d) 684, 152 P. (2d) 973, we said: “It is the firmly established rule that a motion for judgment notwithstanding the verdict involves no element of discretion and will not be granted unless the court can say, as a matter of law, that there is neither evidence nor reasonable inference from evidence sufficient to sustain the verdict. [Citing cases.] “In ruling on a motion for judgment notwithstanding the verdict, the evidence must be viewed in-the light most favorable to the party against whom the motion is made, and all material evidence favorable to the contention of the party benefited by the verdict must be taken as true. [Citing cases.] “If there is substantial evidence supporting the verdict of the jury, as distinguished from a mere scintilla of evidence, the verdict must stand. [Citing cases.] “By ‘substantial evidence’ is meant that character of evidence which would convince an unprejudiced, thinking mind of the truth of the fact to which the evidence is directed.” Appellant brought certain wheat raised by him to respondents, who operated a flour mill and feed store. It was exchanged for Idaed wheat which was to be used as seed. The sacked wheat received by appellant was marked “Re-cleaned Idaed Wheat, 140 pounds.” Appellant seeded eighty-one acres of land with this seed wheat. When it began to grow, it came up in strips. Apparently two kinds of wheat, having different growing periods, had been mixed. One variety matured before the other. It was necessary for appellant to wait until the slower growing grain had matured before he could harvest. The crop yielded an average of 18.4 bushels to the acre. Appellant maintained: that he suffered damages by reason of the mixed seed wheat; that the yield had been less than he would have harvested had it all been Idaed wheat; that a portion of the crop had been lost because of the varying maturity dates; that it had been necessary for him to harvest with a combine, at greater expense; that some wheat had been docked in price, because of the presence of green wheat and shriveled kernels. On the other hand, evidence was presented tending to prove (if believed): that appellant had not properly prepared and fertilized his land; that the loss of yield (if any) resulted from not planting at the proper time; that other farmers in the same vicinity had not received as good yields as appellant; that appellant had suffered no loss by reason of the mixed seed wheat. In his memorandum opinion denying appellant’s motion for judgment notwithstanding the verdict, the trial court correctly summarized by saying: “In the case at bar there was evidence the plaintiff was damaged by reason of the mixed seed wheat. There was also evidence he was not damaged thereby.” It is the province of the jury to weigh the evidence, under proper instructions, and determine the facts. It is the province of the jury to believe, or disbelieve, any witness whose testimony it is called upon to consider. If there is substantial evidence (as distinguished from a scintilla) on both sides of an issue, what the trial court believes after hearing the testimony, and what this court ■ believes after reading the record, is immaterial. The finding of the jury, upon substantial, conflicting evidence properly submitted to it, is final. The record disclosed substantial evidence which, if believed, supports the verdict of the jury. The trial court did not err when it denied appellant’s motion for judgment notwithstanding the verdict of the jury. Appellant urges that the court erred in not granting his motion for a new trial on the grounds that there is no evidence, nor reasonable inference from the evidence, to justify the verdict and that it is contrary to law. Our prior discussion disposes of the contention that there was no evidence to support the verdict. The verdict was not contrary to law. Granting or refusing a motion for a new trial is discretionary with the trial court, except where pure questions of law are involved. We will not interfere with a ruling upon such a motion unless it can be said from the record that the court abused its discretion. Norland v. Peterson, 169 Wash. 380, 13 P. (2d) 483. There is no abuse of discretion if there was a case for the jury. Such was the situation. See Dyal v. Fire Companies Adjustment Bureau, 23 Wn. (2d) 515, 522, 161 P. (2d) 321. Appellant’s third assignment of error is not well taken. Appellant urges that the court erred in not granting a new trial on grounds of misconduct of the prevailing party. To this, respondent replies that the matter is not properly before the court because appellant does not cite in his brief the place in the record where such error is to be found. Rule on Appeal 42 (6), 34A Wn. (2d) 46, provides: “In referring to any portion of the record on appeal, the brief must indicate clearly and definitely the portion of the record to which reference is made. If it refers to the statement of facts, the page of the státement must be given.” We refer to this, not for the purpose of censure, for appellant has followed a practice which has, of late, become increasingly common, but "... merely for the purpose of suggesting to the members of the bar generally that compliance with our rules is important.” Ericksen v. Edmonds School Dist., 13 Wn. (2d) 398, 408, 125 P. (2d) 275. The alleged misconduct of the prevailing party, upon which appellant relies to support this assignment of error, refers to two quoted portions of respondent’s testimony wherein appellant claims the jury was prejudiced by a reference to a possible compromise of the difference between the parties occurring prior to commencement of the law suit. In the first incident, appellant’s counsel made no objection to the answer, nor did he request that the answer be stricken and the jury instructed to disregard it. Later, on cross-examination of respondent by appellant’s counsel, the following took place: “Mr. Buckley: Q. This starting suit against you was evidently not an afterthought; you had heard from him in July, again in September, and again in October. A. About the first time that I knew he was going to sue was after September 19th. He apparently became angry because I docked him two cents a bushel. Q. It wasn’t an afterthought that came up in 1951. A. Oh, no, that wouldn’t have been an afterthought because that was all served after he had told me he was willing to settle for the difference in harvest costs. Mr. Buckley: I object and ask that it be stricken. The Court: Yes, objection sustained, and that remark will be stricken from the records and the jury instructed to disregard it. A. I am sorry.” After commenting in a most complimentary manner upon the conduct of both parties and their counsel during the trial of this action, the trial court said, in denying appellant’s motion for a new trial upon this ground: “It is the opinion of the court that any statements made by Mr. Bresnahan [respondent] that might be considered as improper were made through inadvertence or ignorance of their impropriety and the subject was not pursued when instructed by court or counsel not to do so and were not such as to prejudice the mind of the jury.” The record supports the conclusion of the trial court. The inadvertent reference to settlement was stricken from the record. The jury was instructed to disregard it. “Errors of this nature will be considered as having been corrected by proper admonition or instruction from the court to the jury, unless it is affirmatively shown, or this court is otherwise convinced, that the admonitions and instructions have failed of their purpose.” Bates v. Tirk, 177 Wash. 286, 290, 31 P. (2d) 525. We are not convinced that the admonition given by the trial court failed of its purpose. The judgment is affirmed. Grady, C. J., Mallery, Hill, and Olson, JJ., concur.

Utter, J. Can a search warrant be valid when it is based upon an affidavit which contained a relevant omission of fact? If the warrant is facially valid and the omission neither intentional nor made with reckless disregard for the truth, such a warrant may be upheld and we do so in this case. On August 20, 1982, Captain Ken Meyer of the Stevens County Sheriffs Department received an anonymous tip that appellant, Ronald Cord, was growing marijuana at his ranch. The tip specified where marijuana was being grown on the property. Three days later, Captain Meyer conducted an aerial surveillance of appellant's property from an altitude of 3,400 feet above ground level. He took pictures of appellant's property from this height, using a 50 mm lens to reflect accurately what he saw. On that same day, Captain Meyer obtained a search warrant from Stevens County District Court Judge David E. McGrane. Captain Meyer's affidavit for the warrant recited the fact that he had received an anonymous tip that appellant was growing marijuana on his property and that he thereafter conducted an aerial surveillance of the Cord property. The affidavit provided no further information about the informant, nor did it indicate that the informant had provided specific information regarding the marijuana's location on the property. The affidavit did not set forth the altitude at which Meyer had identified the marijuana, nor were the aerial photographs available for the judge to view before issuing the warrant. A subsequent search of the Cord residence resulted in the seizure of several bags of marijuana as well as a substantial amount of marijuana paraphernalia. Additionally, 131 live marijuana plants were seized in an unenclosed area 300 to 500 feet from the Cord residence. The appellant was placed under arrest and charged with a violation of RCW 69.50.401(a) (1) (ii) for manufacture and possession of marijuana. He moved the court for an order suppressing all evidence seized from his property on grounds that the search had violated his right to be free from all unreasonable searches and seizures under the fourth amendment to the United States Constitution. At the suppression hearing, the testimony offered by Captain Meyer revealed that the judge who issued the warrant had been advised on previous occasions that the standard height used by the sheriff's department when identifying marijuana was 1,000 feet. Captain Meyer was fairly certain he did not tell the judge that he had been flying 3V2 times the standard height when he identified the marijuana on appellant's property. There was no evidence to support appellant's argument that this misrepresentation was made intentionally or with reckless disregard for the truth. A defense expert testified that marijuana cannot be identified at a height of 3,400 feet. Captain Meyer also testified that it was difficult to identify marijuana from 3,400 feet and that he would not expect anyone to identify it from the photographs he had taken from the plane. He based his ability to distinguish the plants from other shrubbery on the Cord property on their peculiar shade of green and on the information provided him by the informant. The trial court entered the following findings of fact: 2.3 On August 20, 1982, Captain Meyer flew over the Cord property at 3400 feet. The normal overflight altitude was 1,000 feet, thus this was a substantial exception to the normal procedure. 2.4 Capt. Meyer had successfully flown on approximately 10 marijuana flights which resulted in the discovery of marijuana. . . . 2.5 No record was made of the application for the search warrant, no summary of additional evidence was made. 2.6A Judge David McGrane had been previously advised that generally overflights are conducted at 1,000 feet elevation. 2.8 No additional information was provided as to the height of the flight. 2.9 Without information as to the location of marijuana it is impossible to identify marijuana from 3400 feet. Clerk's Papers, at 48-49. The court entered the following conclusions of law: 3.1 The search warrant for controlled substances was properly issued as Judge David McGrane could find probable cause based upon the information provided. 3.3 Captain Meyer's omission of relevant information did not constitute a reckless disregard for the truth, nor was it false; therefore, the defendant failed to make a substantial showing of misrepresentation. 3.5 The Court does not decide whether the open fields doctrine applies in this case. Clerk's Papers, at 49. The court denied appellant's motion to suppress. On April 1, 1983, upon stipulation by appellant that there was sufficient evidence to convict, the court found him guilty, entered Findings of Fact and Conclusions of Law and entered Judgment and Sentence against appellant. Appellant appealed to the Court of Appeals which certified the case to this court. I Appellant first contends that the aerial surveillance of his property at 3,400 feet was a search necessitating a warrant under Const. art. 1, § 7. In State v. Myrick, 102 Wn.2d 506, 688 P.2d 151 (1984), the aerial surveillance at issue had been conducted without visual enhancement devices at an altitude of 1,500 feet. We there held that this surveillance was not unreasonably intrusive and did not constitute a search under Const. art. 1, § 7. Appellant, here, has offered nothing to persuade us that the overflight at 3,400 feet was unreasonably intrusive. As in Myrick, the police here viewed the contraband without visual enhancement devices and from a lawful vantage point. We therefore find this aerial surveillance of appellant's property was not a search under Const. art. 1, § 7. Appellant challenges the sufficiency of the affidavit on the following grounds: (1) that the affidavit was facially deficient due to the omission of the altitude at which the affiant had identified the marijuana, and (2) that the affiant made a material omission of fact which, if included in the affidavit, would have precluded a finding of probable cause. II Appellant asserts that the affidavit was insufficient to establish probable cause because it neither contained sufficient information to establish the reliability of the anonymous informant nor a reference to the height at which the marijuana was identified. We do not address appellant's contention regarding the anonymous informant, because we find the affidavit sufficient to establish probable cause absent information provided by the informant. To establish probable cause the affidavit must set forth sufficient facts to lead a reasonable person to conclude there is a probability that the defendant is involved in criminal activity. State v. Seagull, 95 Wn.2d 898, 906-07, 632 P.2d 44 (1981); State v. Henker, 50 Wn.2d 809, 811, 314 P.2d 645 (1957). Great deference is accorded the issuing magistrate's determination of probable cause. State v. Smith, 93 Wn.2d 329, 610 P.2d 869, cert. denied, 449 U.S. 873, 66 L. Ed. 2d 93, 101 S. Ct. 213 (1980). Here, the affidavit set forth that the affiant was a police officer with 13 years' experience in the Stevens County Sheriff's Department. He had completed marijuana identification school and had attended numerous drug identification seminars. He had experience identifying marijuana in all stages of its growth; and he had identified patches of marijuana from an airplane on 10 prior occasions each of which resulted in the seizure of marijuana. The affidavit then set forth that the affiant had conducted a flyover of appellant's property and had "observed and identified the marijuana growing in a field on the above described property." It then described the precise area to be searched and the location of the marijuana. There is nothing speculative about the affiant's statements here. They provided a sufficient basis for the issuing judge to conclude that a crime was probably being committed. Information regarding the altitude at which the identification was made would have been helpful to the judge's determination. The inclusion of this information is preferable. We cannot say, however, that the firsthand identification of contraband by an officer with considerable training and experience was an insufficient basis for the magistrate's finding of probable cause. Ill Does omission of this information invalidate the warrant? In Franks v. Delaware, 438 U.S. 154, 57 L. Ed. 2d 667, 98 S. Ct. 2674 (1978), the Supreme Court held that where a defendant makes a substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affi-ant in the warrant affidavit, and if the allegedly false statement is necessary to the finding of probable cause, the Fourth Amendment requires that a hearing be held at the defendant's request. Franks, at 155-56. If, at the hearing, the defendant establishes his allegations by a preponderance of the evidence, the material misrepresentation will be stricken from the affidavit. If the affidavit then fails to support a finding of probable cause, the warrant will be held void and the evidence excluded. The Franks test for material misrepresentations has also been extended to material omissions of fact. United States v. Martin, 615 F.2d 318 (5th Cir. 1980); United States v. Park, 531 F.2d 754, 758-59 (5th Cir. 1976). Appellant disputes the trial court's finding that the affi-ant's omissions were neither intentional nor made with reckless disregard for the truth. Initially, we note the great deference that is to be given the trial court's factual findings. In re Sego, 82 Wn.2d 736, 513 P.2d 831 (1973); Nissen v. Obde, 55 Wn.2d 527, 348 P.2d 421 (1960). It, alone, has had the opportunity to view the witness' demeanor and to judge his veracity. We find nothing in the record, here, to call the trial court's findings into question. Appellant points to the affiant's apparently contradictory statements: i.e., in a pretrial deposition he stated that most aerial surveillance is conducted at 1,000 feet and that he generally asks the pilot to fly lower if this height is exceeded; yet, at the pretrial suppression hearing he admitted that he surveyed appellant's property from 3,400 feet. What appellant fails to note in this scenario is that the affiant acknowledged the Cord overflight was a substantial deviation from procedure. The admitted inconsistency here was in procedure, not in testimony. The testimony of the defense expert that marijuana could not be identified at 3,400 feet, under any circumstances, was open to question. The trial court could have believed the defense expert’s conclusions were suited only to the scientific identification of botanists. The botanist/defense expert here did not believe marijuana could properly be identified and its species ascertained from even a distance of 500 feet. Appellant's additional references to the record lend no credence to his theory that the affiant's omission was either reckless or intentional. Appellant, alternatively, cites to People v. Kurland, 28 Cal. 3d 376, 618 P.2d 213, 168 Cal. Rptr. 667 (1980), cert. denied, 451 U.S. 987 (1981), for the proposition that a negligent omission of a material fact requires insertion of the fact omitted into the affidavit. If the affidavit then does not support a finding of probable cause, the warrant is void and the evidence obtained is excluded. Appellant argues that the omission here was, at best, negligent and that insertion of the true altitude at which the surveillance was conducted would void the warrant. We need not reach this question because we rest our decision here upon the Fourth Amendment test of Franks. The test in Kurland was derived from People v. Cook, 22 Cal. 3d 67, 583 P.2d 130, 148 Cal. Rptr. 605 (1978), wherein the California Supreme Court departed from the Fourth Amendment test of Franks under its own constitution. In Cook, the court determined that a deliberate or reckless misstatement in an affidavit requires a quashing of the warrant because it renders the entire affidavit suspect, in contrast to the Franks remedy which is to excise false statements and then determine whether probable cause remains for issuance of the warrant. It extended this analysis to material factual omissions in People v. Kurland, supra. There it set forth the general rule that where material omissions are made as a result of negligence, the omission should be inserted into the affidavit for an independent appellate court determination whether its inclusion would have precluded a finding of probable cause. It termed this the "add and retest" formula which, it stated, discourages carelessness and helps eliminate the likelihood that a negligent mistake may cause an erroneous finding of probable cause. Yet it recognizes the affiant's good faith effort at accuracy. Kurland, at 388. If, on the other hand, the material omission was deliberate or reckless, the warrant could be struck depending upon the nature of the omission and its effect upon the credibility of other statements in the affidavit. Acceptance of appellant's argument would require us to incorporate the California test into Const, art. 1, § 7. Appellant has not offered any argument in support of this nor did he appear to recognize it as an issue. Therefore, we do not consider it here. In State v. Seagull, supra, we applied the Franks test to an innocent but inaccurate identification. There, the affiant stated he had seen marijuana growing inside the defendant's greenhouse. The plant which the officer had identified as marijuana was later discovered to be a tomato plant. We described the Franks test as "wholly logical. The Fourth Amendment does not proscribe 'inaccurate' searches only 'unreasonable' ones." Seagull, at 908. The affidavit here arguably left the issuing magistrate with at most an inaccurate impression. This was later resolved against the appellant at the suppression hearing. The omission was innocent and the warrant stands. The judgment is affirmed. Brachtenbach, Dolliver, Dore, and Dimmick, JJ., and Cunningham, J. Pro Tern., concur.

Ellis, C. J. Action for damages claimed as resulting from alleged malpractice and negligence of a physician in setting a broken arm. The evidence is so voluminous, comprising some 1,200 pages of typewritten matter, as to make it impracticable to discuss it in detail. We can do no more than present the bare outline necessary to an understanding of the general nature of the case. On April 23, 1913, plaintiff, a merchant of Ferndale, Washington, broke both bones of his right forearm while cranking an aútomobile; the radius was fractured transversely at a point about three inches, and the ulna obliquely at a point about five inches, above the wrist joint. Defendant Charles S. Hood, a practicing physician, residing in the same town, was called to set the arm. He first attempted to reduce the fractures with the assistance of a trained nurse, retaining the bones in temporary wooden splints. Thereafter, on the same day, he took plaintiff to Bellingham, Washington, where an X-ray examination disclosed that one of the bones had slipped out of alignment. Five unsuccessful attempts were made by defendant, with the assistance of two other surgeons, to reduce the fracture by manipulation. The radius would slip out of alignment at one time and the ulna at another. The three surgeons decided it was a case for incisive operation, as, in their opinion, facia or muscular tissue had intervened between the broken ends of the bones. Plaintiff was thereupon taken to a hospital in Bellingham, placed under an anesthetic, and the fracture treated according to the Lane plate method. This consists in attaching metallic plates to the broken bones with screws, for the purpose of holding the ends in apposition and alignment. Three-holed plates were employed on each bone, that is, plates having a hole at either end and one in the middle to admit screws. Because of the danger of splitting the ulna, instead of using the screw in the middle hole, a wire was wound around the plate and bone. Plaintiff continued in the hospital the whole of the next day, during which he developed a considerable temperature and incipient bronchitis. On the following day he insisted on returning to his home in Ferndale, where he suffered a chill followed by high temperature. The day after reaching home a severe case of infection developed, and the wound over the ulna was, on the following day, opened and discharged much pus. Plaintiff chargéd that the infection was due to the use of unsterilized wire or some other negligence in the operation, while defendants claim that it was due to a constitutional condition resulting from- the bronchial trouble. The wound was dressed twice a day for about two weeks, and then once a day until June 9, 1913, when the plate and wire were removed from the ulna. During all of this time' the wound had been discharging pus, but after the removal of the plate and wire, the discharge gradually subsided and finally ceased. The surgeons who had been consulted when the plates were applied, as well as defendant, subsequently advised a curettement of the ulna for the removal of dead bone and waste matter so as to allow the ends of the living bone to bridge over the fracture. Plaintiff did not consent to the operation until about a month later. There was, however, some evidence that defendant consented to a delay. The curettement was performed on August 10, 1913. At that time the bones were in apposition and alignment and there was a partial union of both fractures, that of the ulna, however, only at one edge and very slight. Defendant applied the last dressing on September 4, 1913, telling plaintiff that there was a delayed union but, with prudent care, he would have a good arm by the next spring. There was evidence that plaintiff, as early as July, 1913, made some use of the arm in driving his automobile and in working about his store. He testified, however, that he did not use the arm at all until Thanksgiving day, 1913, and then only to lift a cup of coffee; he also testified that defendant had instructed him to use the arm some, and that defendant himself had taken hold of the hand and violently rotated it. The fracture did not heal properly, and in August, 1914, plaintiff had an examination made by another physician and was informed that the ulna had no bony union but was connected only by fibrous tissue, and that another operation in the nature of bone grafting would be necessary. Later, other eminent surgeons were consulted and confirmed that diagnosis. The radius had not healed in proper alignment, but was slightly bowed or curved, and the fractured ends of the ulna were separated by a space of about one-eighth of an inch. On May 12, 1915, plaintiff commencéd this action for damages against the community composed of Charles S. Hood and wife, alleging malpractice and negligence on the part of the former, and alleging fraud on his part in wilfully concealing from plaintiff, át the time he discontinued treatment, that there was a false union, and then assuring him that there was merely a delayed union which would become complete and perfect in half a year without the necessity of further surgical assistance. The answer denied all the allegations of negligence on defendant’s part and set up, as an affirmative defense, contributory negligence on the part of the plaintiff in leaving the hospital contrary to instructions, and in using the broken arm in tying bundles and driving his automobile, and in failing to comply promptly with defendant’s recommendation in July, 1913, to submit to a curettement. The jury returned a verdict against defendant for $4,000. This was reduced by the lower court, plaintiff acquiescing, in the sum of $1,000, and judgment was entered for $3,000. Defendants appeal. Respondent moves to strike the statement of facts on the ground that notice of settlement was not served upon him until sixty-three days after he had served upon appellants his proposed amendments and objections to the proposed statement. Our statute, Rem. Code, § 389, governing notice of settlement of statement of facts fixes no time therefor, hence a reasonable time is implied. In Flodmg v. Denholm, 40 Wash. 463, 82 Pac. 788, this court held that notice given four months subsequent to the filing of the pi*oposed statement was not an unreasonable time when it appeared thex*e was no intention of abandoning the appeal. In the case before us, the proposed statement was sei’ved October 28, 1916, respondent’s objections and proposed amendments were served November, 1916; the trial was before a nonresident judge, and though his attendance in the county for the purpose of settlement was requested in November, he was unable to attend until December, 1916, at which time respondent demanded the statutory three days’ written notice of settlement. The judge fixed as the time of settlement January 6, 1917, and three days’ notice prior to that date was given to respondent. The case is well within the rule of the Flodmg case. The motion is denied. Respondent further moves to strike certain portions of the statement of facts which embody things which, under Rem. Code, § ,395, are required to be included in the transcript. While that section provides that “it shall not be necessary or proper, for any purpose, to embody the same in any bill of exceptions or statement of facts,” and a duplication of the same matters in the transcript and statement is plainly not necessary, neither is it prejudicial, except as affecting costs. This matter can be met, if necessary, when the appeal costs are taxed. The motion is denied. Finally, respondent moves to strike from the statement the memorandum decision of the trial judge in ruling on the motion for judgment non obstante veredicto and for a new trial; this, on the ground that such decisions, not being made a part of the statement of facts, are not properly a part of the record. The motion miist be granted for the reason stated in our recent decision in In re Patterson, 98 Wash. 334, 167 Pac. 924. On the merits, appellants have assigned some seventy claims of error, which require for their bare statement forty-one pages of the printed brief. It is, of course, impracticable to discuss all of these within the limits of an opinion. We shall, therefore, confine our discussion to those points which seem to us determinative of the appeal. Appellants contend that the evidence presented no issue of fact for the jury, in that no expert witness of the same school of practice as that of appellant would say that the method of treatment employed was not the proper one. It is asserted that the case is one for the court alone, and to be determined upon expert testimony alone. Reliance is placed upon statements made in some of our decisions that it is enough if the treatment employed “had the approval of at least a respect able minority of the medical profession who recognized it as the proper method of treatment.” Dahl v. Wagner, 87 Wash. 492, 151 Pac. 1079; Lorenz v. Booth, 84 Wash. 550, 147 Pac. 31. These decisions, however, go no further than to say that a physician cannot be held as for malpractice when no more is shown than a difference of opinion among experts as to whether or not there was an error of judgment in adopting the method of treatment which was adopted. As said in the Lorenz case, touching the use of the Lane method here involved, when there is more than one recognized method of treatment for a particular character of case, “the attending physician is not liable for an honest mistake of judgment in his selection of the method of treatment.” But there is an obvious distinction between a claim of negligence in the choice of methods of treatment and a charge of negligence in the actual performance of the work or treatment after such choice is made. As to the first, the charge is refuted, as a matter of law, by showing that a respectable minority of expert physicians approved of the method selected, thus taking the case from the jury. As to the second—a charge of negligent performance—where there is any evidence tending to show such negligence the case is for the jury, as in other cases of negligence, whenever upon the evidence the minds of reasonable men might differ. We think the case here falls within the latter category. There was evidence that appellant admitted to respondent, respondent’s wife, his mother-in-law and his clerk that he drilled the holes in the bone too large for the screws used in placing the plate, and, fpr that reason, wrapped the plate and the bone with a wire, and that the wire caused the trouble. There was also evidence that, in removing the wire, appellant had used great force, and in removing the plate, splinters of bone were pulled away. True, this use of excessive force was controverted by appellant and some of his witnesses, but the conflict made a question for the jury. Appellant himself testified that he and other doctors thereafter advised a curettement because the X-ray picture showed a delayed union. The jury might have inferred from the evidence that the force used in removing the wire was in itself sufficient to destroy any incipient union which might have existed, and thus caused the final failure of the bone to unite. Aside from any expert evidence on the subject, such an inference might reasonably be drawn by any man of common understanding. These things present questions of negligence, pure and simple, and were for the jury. They were not questions relating to the discretion of the physician in his choice between recognized methods of treatment. The court instructed the jury as follows: “You are instructed that, if you should believe from the evidence that there are several methods by which a treatment of the fracture of the plaintiff’s arm, such as you find the plaintiff’s to have been and which several methods are recognized by physicians and surgeons of ordinary reasonable skill and ability, then the defendant was at liberty to follow any one of such recognized methods and cannot be held responsible for following one of these methods rather than another, even though you should believe that by following one of such methods a better treatment and result would have been accomplished.” This instruction might have been better had it added the distinction which we have made. The evidence would have warranted an instruction categorically taking from the jury the question of negligence in resorting to the Lane plate method and limiting this phase of the question to negligence in the manner in which that method was employed or performed, but no such instruction was requested. We are further of the opinion that the question of contributory negligence was also one for the jury. Though there was evidence that respondent used his arm in driving his automobile and in working about his store, he himself contradicted these charges. Moreover, there was some evidence that appellant recommended a moderate use of the arm, and himself, at different times, took hold of appellant’s hand and rotated the forearm. On such a conflict of evidence, no court would be warranted in holding respondent guilty of contributory negligence as a matter of law. It is contended that the court erred in refusing to suppress the deposition of Dr. J. C. McFadden, a physician of the osteopathic school. The first ground of the motion to suppress seems to be that the stipulation under which it was taken was violated. The deposition recites that it was taken “beginning on the 16th day of March, 1916, and from day to day until the 24th day of March, 1916.” There is nothing to indicate an actual adjournment from day to day. Appellants assert that this vitiates the deposition. Such seems to be the rule where a deposition is taken upon notice, but this deposition was not taken upon notice, but upon a stipulation that it might be taken “on any day prior to March 24th, 1916,” and that the hearing might be adjourned from day to day. It was taken upon interrogatories and cross-interrogatories. Obviously no prejudice could result if taken upon any or all of the days within the period fixed by the stipulation. We find no error in the refusal to suppress the deposition on this ground. It is next asserted that the deposition should ,be suppressed because certain cross-interrogatories were not fully answered. We fail to find any question unanswered. True, some answers were stricken and some partially stricken, but there was no such contumacious failure to answer, or to answer frankly, as would vitiate the deposition. Finally, in this connection, it is contended that the deposition was inadmissible because the witness was an osteopath, whereas appellant belongs to the allopathic school. Appellant takes the broad position that a physician of one school is not competent to testify-in a suit for malpractice or negligence of a physician of another school. Several decisions are cited which it is claimed support this view, but as we read them they hardly go that far. The rule is not that a physician of another school is not competent to testify, but that a defendant’s treatment is to be tested by the general doctrine of his own school, which is a very different thing. In other words, the standard of exclusion of evidence is not the school of the witness but the premises of his testimony. If the premises from which he testifies, that is to say, the criterions by which he measures defendant’s treatment, are those of defendant’s own school, the witness is not disqualified merely because he himself belongs to another school. Bowman v. Woods, 1 G. Greene (Iowa), 441; Force v. Gregory, 63 Conn. 167, 27 Atl. 1116, 38 Am. St. 371, 22 L. R. A. 343; Martin v. Courtney, 75 Minn. 255, 77 N. W. 813; Patten v. Wiggin, 51 Me. 594, 81 Am. Dec. 593; Grainger v. Still, 187 Mo. 197, 85 S. W. 1114, 70 L. R. A. 49. In qualifying, the witness McFadden stated he had studied operative surgery in college and that he had studied certain works of the late Dr. John B. Murphy, of Chicago, a recognized authority on operative surgery. Appellant himself admitted that Dr. Murphy was one of the foremost authorities on operative surgery in the world. The witness also testified that he had studied certain English works treating specifically of the Lane plate method. Clearly the basis or criterion by which the witness measured appellant’s use of this method was that of appellant’s own school. The distinction which we have attempted to make was covered by an instruction of the trial court as follows: “In this connection you are also instructed that if you find that there is more than one branch or school of physicians and surgeons which applies or uses different methods in the treatment of bone fractures, to one of which schools the defendant belongs, he is only expected to - follow the method ordinarily followed by the school to which he belongs and the question of his skillfulness, carelessness or negligence is not to be governed by the beliefs or practices of any other school of physicians or surgeons.” As limited by this instruction, the testimony of the witness, though an osteopath, was clearly competent. Nor are we impressed with the claim that this witness was disqualified because he had no right to practice the allopathic system and has only a theoretical knowledge of that system. So long as the opinion of the medical expert is his own it is admissible, though it be based on the study of books rather than on his own experience. Jones, Evidence (2d ed.), § 368; People v. Phelan, 123 Cal. 551, 56 Pac. 424; Finnegan v. Fall River Gas Works, 159 Mass. 311, 34 N. E. 523; Hardiman v. Brown, 162 Mass. 585, 39 N. E. 192; People v. Thacker, 108 Mich. 652, 66 N. W. 562. Even a nurse is competent to testify as an expert from her own observation as to whether a given operation was performed in the usual manner and with the usual care. In fact, in this, case, appellant himself called the nurse to negative respondent’s charge of surgical uncleanliness and excessive force and to say that appellant used no greater force than the usual skilled manipulation of a surgeon. Such evidence is competent; its weight is for the jury. So here, when it once appeared that the osteopathic physician was basing his testimony on the tenets of appellant’s own school, his testimony was admissible; its weight was for the jury. The admission of this testimony then became largely a matter for the discretion of the trial court, as in other cases of expert testimony. Appellants base assignments of error upon certain hypothetical questions propounded in the deposition, claiming that they were too narrow. These questions omitted the admitted fact that splints were used in addition to the metal plates. The court held that the hypothetical questions directed solely to the manner of placing the plates need not include the fact that splints were also used, but that those questions calling for the opinion of the witness as to whether or not the use of a single screw in each end of the plate accounted for the healing of the radius in a bowed condition should have included a reference to all the conditions, among them, the fact that external splints and casts were used. The last ruling was clearly correct. Where a final bad result of any sort of operation is sought to be accounted for by expert opinion the question should include everything in evidence which could reasonably contribute to that result. But it seems to us that the first ruling was wrong; there was evidence that the plates were secured by one screw at each end with no screw in the middle hole, so that it had a tendency to operate as a hinge instead of producing a condition of immobility, and that this was sought to be overcome by wrapping a wire around the middle of the plate and around the bone and by using splints. Since apposition, alignment and immobility were the things desired and sought to be obtained, it might be that an expert would say that the first two of these being attained by the plate with only two screws, the last, namely immobility, might be secured by the use of splints or a cast in conjunction with the plate and by wrapping with wire. The hypothetical question should have included all these elements. Another question relating to the cause of infection included an assumption that the wire was not boiled or in any manner sterilized. This was objected to on the ground that there was no evidence that the wire was not boiled. The court overruled the objection, saying “that question will be for the jury as to whether or not the facts agree.” There was some evidence that the wire had been boiled and no evidence that it had not. Negligence cannot be presumed. This question and the answer should have been excluded. Another hypothetical question touching the infection made no reference to the physical condition of the patient, though there was evidence that, at the time, he was suffering from a bronchial trouble which might have accounted for the infection of the wound. We think that the failure to include this element in the hypothetical question was also error. Still another hypothetical question was directed to the failure to remove fibrous tissue at the time of the curette ment on August 10, 1913. This question assumed that there was a fibrous union at that time. There was no such evidence; in fact, the evidence was to the contrary. The question should have been excluded. Finally, appellant contends that the court erred in giving certain instructions and in refusing to give others. We have carefully examined all of the instructions given and they seem to us fairly to cover the law of the case, and so far as the requests were proper, the ground covered by such requests was covered, save in one particular. Appellant requested an instruction as follows: “You are further instructed that the mere presence of infection is no evidence in itself of negligence on the part of the defendant physician, and in this connection, you are instructed that there is no liability on the part of the defendant physician for the infection first appearing in plaintiff’s forearm following the operation, and that there is no issue presented to you under the facts on which defendant can be held liable for the infection first appearing in plaintiff’s forearm.” A careful consideration of the evidence convinces us that there was no evidence sufficient to take to the jury the question of appellant’s responsibility for the primary infection of the forearm. The evidence was uncontradicted that all of the instruments, materials and accessories used in the operation were surgically clean. The requested instruction, or one in some form taking this question from the jury, should have been given. The judgment is reversed, and the cause is remanded for a new trial. Holcomb, Parker, Fullerton, and Mount, JJ., concur.

Finley, J. — This is a lawsuit by the administrator with the will annexed of the estate of Lucia Merlino, deceased, to have certain property determined to be community property and subject to probate proceedings. The surviving husband, Angelo Merlino, claims that the property in question is his separate property. He and his two sons by a former marriage are defendants. The lawsuit was dismissed by the trial court with prejudice. The administrator w. w. a. has appealed. Angelo Merlino came to this country in the year 1888 when he was twenty years of age. In 1903, he organized the Metropolitan Grocery Company. For a number of years the corporation successfully engaged in an importing and wholesale grocery business. Angelo was the directing force in the corporate business. His two sons worked in the business from-their early youth, apparently with a family understanding that they eventually would become its owners. In addition to his two sons, Angelo had three daughters by his first marriage. They own no interest in the business. Lucia Merlino, the decedent, married Angelo in 1929 after the death of his first wife. At the time of her marriage to Angelo, Lucia had two adult daughters and a son by a previous marriage. When the marriage to Lucia occurred in 1929, Angelo owned real property valued at approximately $72,000; all but two qualifying (directorship) shares of the Metropolitan Grocery Company (book value at that date being $72,880.52); and in addition, there were certain balances owing to Angelo on various sums of money he had previously lent. Lucia, at the time of her marriage to Angelo, owned a dairy ranch (operated upon leased land), on which there were nineteen head of cattle. The ranch was later sold to one of her daughters for four thousand dollars. Lucia owned a home in Roslyn, Washington, a cafe in Cle Elum, Washington, and had a bank account in an undisclosed amount. Prior to the marriage, Angelo and Lucia executed an ante-nuptial agreement which had been prepared by Angelo’s attorney. Among other things, the agreement provided that the property owned by the parties at the time of their marriage, together with any increment thereof and any property subsequently “taken ... in the name of” either of the parties, would be separate rather than community property. The significant paragraph of the antenuptial contract reads as follows: “4. That it is the desire of the parties hereto, that notwithstanding the marriage relationship to be entered into, that each of the parties retain the separate ownership of their own property, and it is now agreed, that at all times hereafter, all real and personal property which the party of the first part owns at this date, together with all the increase thereof, no matter how derived, and the title to all property hereafter taken, whether real or personal, in the name of the party of the first part; and whatever property, whether real or personal, the title to which stands in the name of the party of the first part at the time of his death, shall be the sole and separate property of the party of the first part, and that he shall be free to devise the same by a last will and testament in any manner he may choose.” The agreement contained another paragraph similar to the foregoing one, except that it was applicable to Lucia’s prop erty then owned and property subsequently taken in her name. The contract also provided that Angelo would maintain a five-thousand-dollar policy of insurance on his own life in favor of Lucia. She was to insure her own life for three thousand dollars, naming Angelo as beneficiary. After five or six years, both policies were allowed to lapse and were never reinstated. Angelo further agreed to provide in his will that, should Lucia survive him, she would have the use and occupancy of their family home during the remainder of her natural life, so long as she did not permanently remove therefrom. This provision was only partially complied with. Under Angelo’s will, Lucia’s right to use the family home would be cut off upon her remarriage, or if she should voluntarily absent herself from the home for a period of thirty days. After the marriage in 1929, Angelo and his two sons continued to operate the importing and grocery business until 1945, at which time the corporation was dissolved. In 1946, Angelo sold the assets of the dissolved corporation on a conditional sale contract to his two sons for $133,344.28. This contract provides that whatever balance is due at the time of Angelo’s death will be discharged. Angelo and Lucia lived together for twenty-two years, until the latter’s death in 1951. In her will, Lucia left her estate to her two daughters. Angelo was appointed to administer the estate. He filed an inventory and appraisal showing a bank account of $847 as the sole asset of Lucia’s estate. Thereafter, David O. Hamlin was appointed as administrator with the will annexed of Lucia’s estate. He initiated discovery proceedings in an effort to disclose assets of the estate in addition to the small bank account mentioned above. In the present lawsuit, appellant administrator asserts no claim to property owned by Angelo at the time of his marriage, but contends that the property, listed as follows, was acquired after the marriage and is community property and should be administered as part of Lucia’s estate: (a) ten savings and checking accounts in Angelo Merlino’s name, totaling approximately $48,000, which accounts were opened long after the marriage of Angelo and Lucia; (b) a $5,000 U. S. Government bond, Series E, payable to bearer, purchased by Angelo in 1944; (c) three promissory notes, executed by Dominick and Pete DeSanto (balance at the date of Lucia’s death totaling $19,301.11); (d) real property described as lot one, block four, Terry’s Fifth Addition to Seattle, purchased from King county in 1939 for $260, with improvements placed thereon sometime after 1939. We note that appellant also claims a community interest in $2,300, in silver dollars, which were kept in containers, apparently for several years, in Angelo’s house. The only evidence in the record bearing on this $2,300 came from Angelo, who testified that the silver coins disappeared the day before Lucia’s death. Appellant offered no proof that either Angelo or his sons have had possession of this asset at any time since the death of Lucia. Because of this failure of proof, we do not think that the matter of this item is before us, and we deem it unnecessary to determine its status as community or separate property. It will be recalled that, prior to Lucia’s death, the corporation had been dissolved and its assets sold to Angelo’s two sons under a conditional sale contract. At the time Lucia died, there was still due on the contract approximately $89,000; also, Angelo had in his possession several uncashed checks representing payments made by the sons on the contract. Appellant asserts a community interest in the balance due on the contract, such interest allegedly representing the increased value of the grocery and importing business claimed to have accrued after the marriage as a result of the community efforts or labor of Angelo. Angelo Merlino, as respondent, contends, as the trial court found, that all of the above-listed items of property, including the balance due on the conditional sale contract, are his separate property. In support of the judgment of the trial court, Angelo argues, (a) that the antenuptial agreement is valid and binding, and (b) that, as a result of it, all of the assets listed above are his separate property; he further contends, (c) that, solely by application of the community property laws-of Washington, the above-listed assets are his separate property.- In the ensuing discussion we shall, for the most part, refer to the questions raised by assignments of error rather than to the assignments specifically and individually. With this observation, we shall now consider whether Lucia acquired any community interest in the corporation. It will be recalled that, prior to the marriage and until the time in 1945-1946, when the corporation was dissolved and its assets sold to Angelo’s two sons, substantially all of the corporate stock was owned or held by Angelo, ostensibly as his separate estate. If, solely by the operation of the community property rules of this state, the corporation at the time of its dissolution was the separate property of Angelo, no consideration of the effect of the antenuptial contract is necessary to establish Angelo’s claim of separate ownership of the conditional sale contract, the balance due thereon, and the uncashed checks representing monthly payments. Accordingly, the problem of the ownership of the corporation will now be considered solely in relation to our community property law. It is a well settled principle that separate property continues to be separate through all of its changes and transitions as long as it can be clearly traced and identified; furthermore, that rents, issues, and profits from separate property remain separate property. In re Brown's Estate, 124 Wash. 273, 214 Pac. 10; Rogers v. Joughin, 152 Wash. 448, 277 Pac. 988; State ex rel. Van Moss v. Sailors, 180 Wash. 269, 39 P. (2d) 397; In re Binge’s Estate, 5 Wn. (2d) 446, 105 P. (2d) 689; DuPont de Nemours & Co. v. Garrison, 13 Wn. (2d) 170, 124 P. (2d) 939; Burch v. Rice, 37 Wn. (2d) 185, 222 P. (2d) 847. In In re Dewey’s Estate, 13 Wn. (2d) 220, 124 P. (2d) 805, we quoted from Guye v. Guye, 63 Wash. 340, 115 Pac. 731, as follows: “ ‘Moreover, the right of the spouses in their separate property is as sacred as is the right in their community property, and when it is once made to appear that property was once of a separate character, it will be presumed that it main tains that character until some direct and positive evidence to the contrary is made to appear.’ (Italics ours.)” Appellant concedes that, at the time of the marriage, the corporation was Angelo’s separate property; but argues, as mentioned above, that the increase in its value from the time of the marriage until the dissolution in 1945 was community property because it was attributable to the community labor or efforts of Angelo. During the pertinent years, Angelo paid himself a salary from the corporation, averaging $1,858 a year. This salary was unquestionably community property. However, the trial court found that the salary was used up in taking care of the living expenses of the Merlinos. From our review of the record, we are not inclined to disturb this finding of the trial court. Where separate property, owned at the time of marriage, is combined with community labor of the husband to create profits or to increase the value of the original separate property, with both the community and the separate estates asserting ownership of such increment, the courts are confronted with directly conflicting principles, each demanding exclusive application. In analyzing the decisions dealing with this problem, the principle is stated that the solution of each case depends upon its own particular facts. In re Hebert’s Estate, 169 Wash. 402, 14 P. (2d) 6. However, some other more helpful principles seem to emerge. For example, it is clear that, where the separate property in question is real estate or an unincorporated business with which personal services ostensibly belonging to the community have been combined, the rule is that all the income or increase will be considered as community property in the absence of a contemporaneous segregation of the income between the community and the separate estates. Salisbury v. Meeker, 152 Wash. 146, 277 Pac. 376; In re Witte’s Estate, 21 Wn. (2d) 112, 150 P. (2d) 595. On the other hand, where, as in the instant case, the husband at the time of marriage owned all or substantially all of the stock of a corporation, somewhat different principles are applicable. In such cases, where a salary is paid to the husband by the corporation, it is reasoned that the community is thereby compensated for his services, and that any dividends paid or any enhanced value of the stock resulting from profits reinvested in the corporation are separate property. The case of In re Hebert’s Estate, supra, is illustrative. In that case, the husband, at the time of his second marriage, owned all the stock in a corporation of which he was general manager. After his marriage, he was paid a salary of $250 a month by the corporation. Five years before his death, the husband sold his stock in return for other property. The surviving wife asserted a community claim to these assets, claiming that the greatest part of the value of the stock sold by the husband before his death accrued after his marriage to her and solely as the result of his personal or community efforts. In reply to the widow’s argument, this court said: “It seems to us, under the circumstances here appearing, that the salary paid by the corporation to deceased, the salary being apparently a fair compensation for his services, became the measure of the interest of the claim of the community against his personal earnings, and that the increased value of his stock, which was his separate property at the time of their marriage, became but the ‘issues and profits’ of such separate property, and hence also became his separate property.” (Italics ours.) See, also, In re Dewey’s Estate, supra. Appellant places his principal reliance upon the case of In re Buchanan’s Estate, 89 Wash. 172, 154 Pac. 129. We there decided that, where husband and wife each contributed their separate funds to subscribe for the stock of a small corporation, and the corporation increased in value twenty-fold in a ten-year period, largely through the personal efforts of the husband, there was such an intermingling of community earnings and separate funds as to render the entire interest in the stock community property. In several respects the facts of the Buchanan case may be distinguished from the facts in the case at bar. There, the original capital investment of nine hundred dollars was contributed from the separate property of both the husband and the wife. The operation of the . corporation was financed in large , measure by community credit. Dividends were paid from time-to time and were commingled- with community funds. The husband and wife treated the corporate property during their lives as community property. Finally, the original separate investment was almost insignificant as compared to the value of the property at the time of the wife’s death. These several distinctions are convincing to us that th,e Buchanan case is not controlling in connection with our present inquiry. It is true that the salary paid to Angelo Merlino during his marriage was rather small. A persuasive argument can be made that, where a husband owning a large corporation pays to the community a salary which is grossly unfair; such salary should be disregarded with the result that profits accruing partly from community labors and partly from natural increase of the separate property will be held to be commingled and community property. However, we need not pass on this question here. Whether a salary of $1,858 a year is fair must depend largely upon the earnings of the corporation during the time such a salary was paid. The evidence on this underlying question is wholly insufficient to support any conclusion as to the unfairness of the salary paid to Angelo. The value of the corporation in 1929 is in dispute. The book value then was $72,880. Angelo Merlino’s attorney testified that he thought the corporation was then worth $120,000. Similarly, the value of the corporation in 1945, when it was dissolved, was not proved. The assets of the business were then sold by Angelo to his sons for $133,344.28; but, in view of the close relationship between the parties, this figure cannot be taken as conclusive of the actual value of the corporation. From the record, we have not been able to determine what the corporate earnings were from 1929 until 1945. As a result, we cannot say that the salary paid by the corporation to Angelo during these years was inadequate. In accordance with the principles enunciated in In re Hebert’s Estate, supra, we hold that the increase in the value of the corporation during the seventeen years of the marriage must be considered as the rents, profits, and increase of Angelo’s separate property, and, therefore, this increase is his separate property. It follows that the balance due upon the contract of sale of the assets of the dissolved corporation, as well as the uncashed checks given by Angelo’s sons in payment thereon, are the separate property of Angelo. As mentioned heretofore, it is unnecessary to consider the legal significance of the antenuptial contract between Angelo and Lucia. Merlino in so far as these assets are concerned. The remaining assets to which appellant asserts community claims were held by Angelo at the time of his wife’s death. They involve a discussion of essentially the same legal 'questions. These assets will be lumped together for consideration. First, with reference to their status under the community property laws of this state: It will be recalled that these assets included ten savings and checking accounts, nine of which were opened in the years 1937 through 1950. The evidence does not show when the one checking account was opened which contained $693.50 at the time of Lucia’s death, but the evidence does reveal that more than that amount had been deposited therein within two months prior to her death. As indicated hereinbefore, Angelo’s assets included a $5,000 U. S. savings bond, purchased in 1944; three promissory notes, payable to Angelo, representing loans made in 1948 and 1949; a lot in Terry’s Fifth Addition to Seattle, purchased in 1939, together with improvements made thereon after 1939. All of these assets, with the exception of the bond and the silver dollars, were in Angelo’s name. So far as the record indicates, there was no connection between them and the corporation. The evidence shows that Angelo was engaged in other business activities than the importing and grocery corporation. Thus, the decision we have reached with reference to the separate status of the corporation does not control in so far as the other property, mentioned above, is concerned. We further note that all of these items of property were acquired long after Angelo’s marriage to Lucia. If any of these assets represented income from property owned by Angelo before his marriage to Lucia, there is no credible evidence in the record to so indicate. In the case of Beakley v. Bremerton, 5 Wn. (2d) 670, 105 P. (2d) 40, we said: “This court has repeatedly held that property acquired by either of the spouses during coverture is presumptively community property, and that the burden is upon the party who contends that it is separate property to prove otherwise. Abbott v. Wetherby, 6 Wash. 507, 33 Pac. 1070, 36 Am. St. 176; Ballard v. Slyfield, 47 Wash. 174, 91 Pac. 642; Plath v. Mullins, 87 Wash. 403, 151 Pac. 811; In re Brown’s Estate, 124 Wash. 273, 214 Pac. 10; Jones v. Duke, 151 Wash. 108, 275 Pac. 72.” (Italics ours.) See, also, Stephens v. Nelson, 37 Wn. (2d) 28, 221 P. (2d) 520. Aside from the provisions of the antenuptial agreement, and thinking for the moment solely in terms of community property law, the fact that much of the property in question is in the name of Angelo Merlino is not controlling. We have held on several occasions that, where a spouse acquired money and placed it in a bank account in his or her own name, this fact does not overcome the presumption that the property was acquired as community property. Plath v. Mullins, 87 Wash. 403, 151 Pac. 811; Jones v. Duke, 151 Wash. 108, 275 Pac. 72. We have studied the record and respondents’ brief searching for evidence that might overcome the presumption. We have found only an assumption that this property was derived from separate income. This assumption is founded upon the further assumption that the community had no income during the marriage, except the $1,858 a year salary from the corporation. Something more is required to establish the separate character of the property concerned. We stated in Berol v. Berol, 37 Wn. (2d) 380, 223 P. (2d) 1055: “The burden rests upon the spouse asserting the separate character of the property acquired by purchase during the marriage, status to establish his or her claim by clear and satisfactory evidence. E. I. DuPont de Nemours & Co. v. Garrison, 13 Wn. (2d) 170, 174, 124 P. (2d) 939, and cases cited therein. The requirement of clear and satisfactory evidence is not met by the mere self-serving declaration of the spouse claiming the property in question that he acquired it from separate funds and a showing that separate funds were available for that purpose. Separate funds used for such a purpose should be traced with some degree of particularity.” (Italics ours.) See, also, In re Dewey’s Estate, supra. Even if it should be assumed that a portion of the savings accounts and other assets were derived from separate income of Angelo, such funds are hopelessly commingled with those which we must presume are community funds, thus rendering the entire mass community property. In re Dougherty’s Estate, 27 Wn. (2d) 11, 176 P. (2d) 335. It remains for us to consider the antenuptial contract between Angelo and Lucia Merlino in so far as it may affect the status of the assets which are unrelated to Angelo’s corporate business. The pertinent provisions of the antenuptial agreement are quoted hereinbefore. It is respondents’ position that, by virtue of the above-mentioned contractual provisions, all property acquired by the parties after their marriage was the separate property of one or the other of them, and, conversely, that there was no community property. A careful reading of the contract does not bear out this conclusion. It is not so broad as contended. There are three parts to the pertinent paragraph: (1) All property owned by Angelo at the time of marriage to Lucia, together with all increase thereof, no matter how derived, was to be his separate property. This provision does not apply to the property under consideration, since it was acquired after marriage and is not shown to be an increase or increment of property owned at marriage. (2) All property, the title to which was taken in Angelo’s name. This is applicable to all the property under consideration except the U. S. bond. The bond was not in Angelo’s name, but was payable to bearer. (3) All property standing in Angelo’s name at the time of his death. This provision cannot aid Angelo, because he is still alive. The gist of the contract provisions is that they do not purport or attempt to alter the status of property acquired after the marriage, except (a) that which is an increase to separate property owned before marriage, or (b) that “taken ... in the name” of Angelo. It may be seen that only the second of the contractual provisions above need be considered. Under it, the items of property, which otherwise would be community property, purportedly become Angelo’s separate property merely by reason of the fact they are “taken ... in the name” of Angelo. Appellant agrees this is the purport of the contract provision, but strongly contends that the agreement is invalid and is not binding upon Lucia or her estate. Inter alia, appellant argues that Angelo Merlino did not meet the strict requirements of good faith imposed upon an intended husband entering into such a contract with his intended wife. Antenuptial agreements which are designed to alter or adjust the property rights of prospective spouses after marriage are not in themselves invalid in this state. Clark v. Baker, 76 Wash. 110, 135 Pac. 1025. Indeed such contracts are recognized in most, if not all, jurisdictions. However, our research reveals very few cases decided by this court involving antenuptial agreements, and none relating to the exact point here presented. On the question of adequacy of consideration for such a contract, it is stated in Lindey, Separation Agreements and Ante-Nuptial Contracts (Rev. ed., 1953) 794, 798, § 90: “To render an ante-nuptial agreement valid, there must be a fair and reasonable provision therein for the wife, or — in the absence of such provision — there must be full and frank disclosure to her of the husband’s worth before she signs the agreement, and she must sign freely and voluntarily, on competent independent advice, and with full knowledge of her rights. . . . “Parties to an ante-nuptial agreement do not deal at arm’s length with each other. Their relationship is one of mutual trust and confidence. They must exercise the highest degree of good faith, candor and sincerity in all matters bearing on the proposed agreement.” In a leading case on this subject, Juhasz v. Juhasz, 134 Ohio St. 257, 16 N. E. (2d) 328, 117 A. L. R. 993, the supreme court of Ohio said (p. 264): “An engagement to marry creates a confidential relation between the contracting parties and an ante-nuptial contract entered into after the engagement and during its pen-dency must be attended by the utmost good faith.” This rule, in accord with the weight of authority, corresponds to the same kind of test for fair dealing this court has required of a husband who has contracted with his wife after marriage with respect to their property rights. Thus, in In re Madden’s Estate, 176 Wash. 51, 53, 28 P. (2d) 280, we said: “While the common law disabilities of married women have been removed by statute in this state, the confidential relationship existing between husband and wife is still recognized to exist. See Rem. Rev. Stat., §§ 1214, 5828. In such relationships of confidence, courts of equity examine with great care transactions between the parties and agreements affecting their property rights. The burden, in such cases, is on him seeking to sustain the agreement to prove that it was fair and entered into with full knowledge of the facts by the one reposing confidence. Perry on Trusts (7th ed.), §194; 2 Pomeroy, Equity Jurisprudence (4th ed.), §§ 955, 956, 957.” (Italics ours.) The first inquiry in any case in which the validity of an antenuptial contract is attacked, must be directed to the adequacy of the consideration and its fairness. Under the terms of the contract now before us, all property the title to which was taken in either spouse’s name would be his or her separate property. The full significance of this provision can be seen only when the relative positions of the parties are considered. Under our basic community property statute, RCW 26.16.030, the husband is made the manager of the community personal property. The statute provides: “The husband shall have the management and control of community personal property, with a like power of disposition as he has of his separate personal property, except that he shall not devise by will more than one-half thereof.” (Italics ours.) It is apparent that, under our law, the agreement between Angelo and Lucia Merlino, in so far as it affected property which otherwise would belong to the community, heavily favored Angelo. It was he who had the management and control of the community property. He had the opportunity and the power to take or place community property in his own name and, thus, to change its character to that of his separate property. In the absence of such a contract, he would, of course, have had no such rights. Under our decisions, many of which are reviewed in Hanley v. Most, 9 Wn. (2d) 429, 115 P. (2d) 933, the husband’s power to dispose of community property is qualified in that his power of disposition must be exercised for the community and in the community interest. In the purview of this limiting principle, he is not permitted to give away community property. In re McCoy’s Estate, 189 Wash. 103, 63 P. (2d) 522. We have held: “The wife has a vested property right in the community property equal with, that of her husband and in the income of the community, including salaries or wages of either husband or wife, or both.” Occidental Life Ins. Co. v. Powers, 192 Wash. 475, 484, 74 P. (2d) 27, 114 A. L. R. 531. There are other considerations which may bear upon the fairness of antenuptial contracts. These include the amount or respective values of the estates of the intended husband and wife, Warner v. Warner, 235 Ill. 448, 85 N. E. 630; the children of each by a prior marriage, Juhasz v. Juhasz, supra; and who prepared the agreement and the business experience of each, Mines v. Phee, 254 Ill. 60, 98 N. E. 260. In the case before us, however, we think that the unlimited power, which the contract purported to give Angelo to unilaterally secure for his separate estate, property which would otherwise belong to the community, indicated unfairness and a breach of trust by reason of the existing confidential relationship of the parties to the proposed marriage, and imposed upon Angelo the burden of proving that Lucia fully understood the nature and significance of the contract, and that she freely and voluntarily entered into it. Respondents did not present such proof. The record discloses that, although Lucia had some business experience, she could neither read nor write. Furthermore, the contract was prepared by Angelo’s attorney, while Lucia apparently was provided with no independent legal or other advice. We have become convinced that the contract cannot stand. With the exception of the assets traceable to the corporation owned by Angelo prior to his marriage to Lucia, the property, itemized and discussed above, is community property. None of the parties will be allowed costs on this appeal. The decree is reversed, in part, and is remanded with instructions to enter a decree in conformity with the views expressed herein. Grady, C. J., Schwellenbach, Hamxey, and Donworth, JJ., concur.

Fullerton, J. This action was brought in April, 1904, by the respondent against the appellants to recover upon a promissory note for $724.95 dated Pebruary 19, 1903, and due twelve months after date. In his complaint the respondent set forth the note in words, showing its execution as principals by both of the appellants, alleged that a payment of $84.95 had been paid thereon prior to’ its maturity, that the balance was overdue^ and demanded judgment for such balance. The appellants answered separately. The appellant Dalyanswered to the effect that, prior to the maturity of the note, the respondent and appellants entered into an agreement by which the respondent, for a valuable consideration, extended the time of the payment of the note until June 1, 1904, and that the action was prematurely brought. The appellant Peter set up the same defense, and the further defense that the respondent had released him from his obligation to pay the note. He alleged that this note, with three certain other notes, had been given as part of the purchase price of a sawmill, sold by the respondent to the appellant Daly and one Purr; that he had no interest in the purchase of the mill, but signed the same as an accommodation maker for Daly and Purr, all of which the respondent well knew; that when the first of the notes given as the purchase price of the sawmill matured it -was paid by Daly and Purr, but when the second and third of the notes matured neither Daly nor Purr were able to pay the same and the respondent called upon him for payment; that he absolutely refused to pay the notes until the respondent should foreclose a chattel mortgage given by Daly and Durr1 to secure their payment and obtain all he could from the sale of such property; that the matter was then taken up by all of the parties and an agreement entered into by the terms of which the respondent agreed, in consideration of the sum of $1,400, which would pay the second and third notes then due in full and the interest, and $84.95 on the principal of the fourth note (the one here in suit), to give to the appellant Daly until dune 1, 1904, to pay the balance owing on the fourth note-, and to release the answering appellant entirely from any further liability thereon,' and to look solely to the chattel mortgage and appellant Daly for payment of the sáme. It is then alleged that, in consideration thereof, and for the sole purpose of being released, from the further payment of the note sued on, he did pay the respondent the sum of $1,400, which sum was applied by the respondent in the manner agreed upon between the parties. A reply was filed denying the affirmative allegations of the answers. At the trial, which was had before the court without a jury, the appellant Peter offered oral evidence tending to show that he was only surety upon the note sued upon, and that he was released from his liability thereon as alleged in his answer. This evidence the court rejected, holding that oral evidence was not competent to prove either that the appellant was only surety on the noté, or that he had -been released from liability thereon. The trial then proceeded on the issue of extension of time; at the conclusion of which the court held the allegations not proven, and entered judgment for the respondent for the sum shown to be due on the note^ This appeal is from the judgment so entered. The ruling of the trial court, to the effect that it is incompetent for one of two or more makers of a joint and several promissory note to show by parol that he is in fact only a surety, and thát he was known to be such by the payee named in the note when the note was taken, is contrary to the ruling of this court in Culbertson v. Wilcox, 11 Wash. 522, 39 Pac. 954, and Bank of British Columbia v. Jeffs, 15 Wash. 230, 46 Pac. 247. It is apparent, however, that this question is not a material one here, unless it is to he held that the appellant Peter was entitled to show that the respondent had released him from liability on the note. On thi's question, the respondent suggests two considerations either of which he contends is fatal to the appellant’s claim: first, that no consideration for the alleged release was pleaded; and second, that a release cannot be shown by parol. As to the first point, it was alleged that, for an immediate payment of a part of the debt, all of which was not then due, the respondent agreed to release the appellant Peter, who was only a surety, from his obligation to pay the remainder. Arid while it is true that courts have disagreed on the question whether the payment of a part of a debt is a sufficient consideration to support an agreement for the release of the whole, this court has taken part' with the courts holding such contracts to be founded on a, sufficient consideration, and we think the pleading sufficient in that respect. See, Brown v. Kern, 21 Wash. 211, 57 Pac. 798. We are constrained to hold, however, that the second contention must be sustained. Section 122 of the negotiable instruments act reads as follows: “The holder may expressly renounce his rights against any party to the instrument, before, at, or after its maturity. An absolute and unconditional renunciation of his rights against the principal debtor made at or after the maturity of the instrument discharges the instrument. But a renunciation does not affect the rights' of a holder in due course without notice. A renunciation must be in writing, unless the instrument is delivered up to the person primarily liable thereon.” Laws 1899, p. 361. This plainly provides that the renunciation of a debt must he in writing where the debt is evidenced by a negotiable instrument, and if “renunciation” is used therein in the sense of “release,” there can he no question that the appellant must show a written renunciation in order to' prove the allegations of his answer. Counsel for the appellant argues that the word is used in a sense different from that of release, and that while a renunciation must he hy a writing, a release may he proved hy parol. But we cannot think the statute permits of this distinction. The words, “The holder may expressly renounce his rights against any party to the instrument,” must refer to the release and discharge of a party to the instrument from his obligation to' pay it, else they can have no legitimate meaning. The remaining question is the sufficiency of the evidence to establish an extension of time of payment of the note;, hut without entering into an analysis of the evidence, it is sufficient to say that we find no cause to reverse the case on this ground. The judgment is affirmed. Mount, C. J., Hadley, Budkin, Boot, Crow, and Dunbar. JJ., concur.

Fullerton, J. The respondents Twedt brought this action against the appellant, Seattle Taxicab Company, to recover in damages for injuries arising out of a collision between their automobile and a taxicab of the appellant. From a verdict and judgment in favor of the plaintiffs, the taxicab company brings the case here. The record discloses that East Madison street is one of the main highways in the city of Seattle, extending from the water front on Elliott Bay in a general northeasterly direction to Madison Park on Lake Washington. The street has upon it a double-track street car line, and is subject to a heavy vehicle traffic. Twenty-fifth Avenue North is a street of the same city extending north and south, crossing East Madison street at an angle of about forty-five degrees. At the time of the collision, a line of bill boards extended back from Twenty-fifth Avenue North, on the south side of East Madison street, for a distance of some one hundred and fifty feet. These bill boards were some eleven feet in height and so obstructed the view that one driving-easterly on East Madison street could not see approaching traffic coming from the south on Twenty-fifth Avenue North, and likewise prevented one driving north on the latter street from seeing approaching traffic coming from the west on East Madison street. At the time of the collision, the appellant’s taxicab was being driven easterly on East Madison street. While there is a conflict in the evidence, there was evidence which would warrant a jury in finding that the cab was then being driven considerably in excess of twenty miles per hour. As the cab approached the intersection of the street with Twenty-fifth Avenue North, the respondents drove their automobile from the south on that avenue into the intersection. There is no dispute in the evidence as to the course the automobile was driven just prior to and after it entered the intersection. All of the evidence shows that, on approaching the intersection, the automobile driver drove near the center of the avenue and turned to the left as he entered the street, passing a considerable distance to the left of the center of the intersection of the streets. The taxicab and automobile collided as the front of the automobile was near the center line of East Madison street. Just prior to the collision, the taxicab was traveling on the right side of the center of the street. As the driver saw the incoming automobile, he turned to his left and endeavored to stop; the vehicles, however, collided, the right front wheel of the taxicab striking the left front wheel of the automobile. The driver of the automobile, after seeing the approaching taxicab, did not endeavor to stop, nor did he change his rate of speed nor the direction of his course. At the time of the accident, both the state law and the ordinance of the city of Seattle limited the rate of speed at which a motor vehicle could be driven over the city streets to twenty miles per hour. The statute, Laws of 1919, p. 123, likewise provided: “Any person operating a motor or other vehicle shall, at the intersection of public highways, keep to the right of the intersections of the centers of such highways when turning to the right and pass to the right of such intersections when turning to the left. ’ ’ Ordinance No. 39720 of the city of Seattle provides: “A vehicle turning into another street to the left shall turn beyond the center of the intersection of the two streets.” It is settled law in this state that “a thing done in violation of positive law is in itself negligence.” Engelker v. Seattle Elec. Co., 50 Wash. 196, 96 Pac. 1039; Wilson v. Puget Sound Elec. R., 52 Wash. 522, 101 Pac. 50, 132 Am. St. 1044; Hillebrant v. Manz, 71 Wash. 250, 128 Pac. 892; Anderson v. Kinnear, 80 Wash. 638, 141 Pac. 1151; Johnson v. Heitman, 88 Wash. 595, 153 Pac. 331; Sundstrom v. Puget Sound Tr., L. & P. Co., 90 Wash. 640, 156 Pac. 828. It will thus be seen that there was evidence from which it could be found that the appellant was, and evidence from which it must be found that the respondents were, at the very time the collision occurred, engaged in an act in direct violation of positive law. This alone, however, will not preclude a recovery. If the fact be that the negligent act of the appellant was the direct and proximate cause of the injury, and the negligent act of the respondent did .-not contribute thereto in any material degree, the responsibility lies with the appellant, and the respondents may recover for the injuries suffered by them. Hullin v. Seattle Taxicab Co., 119 Wash. 311, 205 Pac. 403, and cases there cited. It was on this latter principle that the court submitted the case to the jury. But in so doing we think the court erred. It seems to us that it could be only from the wildest speculation that the jury could find that the respondents ’ negligent acts did not contribute to the collision. Not only was there no evidence to that effect, but the evidence, both direct and circumstantial, was to the contrary. In the first place, it must be remembered that the laws enacted for the government of traffic on the highways are enacted for a purpose. These purposes are doubtless many, but one of the principal purposes is to require uniformity of course and action on the part of the users of the highway, and thus prevent that confusion and danger which would ensue if each individual user were permitted to choose his own course when traveling thereon. In the second place, both observation and experience have shown that it is conducive to safety to require all users of a highway going in the same direction to keep to the same side of the way, and on entering into the intersection of highways to keep to a certain side of the center of the intersection. Indeed, so positive have the lawmakers been in their belief in the necessity of this latter requirement that they have not only enacted it into positive law, but have made it a misdemeanor to disobey the requirement. It is the rule, also, that, when one acts in direct disobedience of positive law and meets with an accident while in the very act. of disobedience, he cannot charge the fault to another without a very clear showing to the effect that his fault did not contribute to the accident. In this instance, had the respondents obeyed the mandate of the statute, their automobile, at the time the collision occurred, would have been on the far side of the intersection of the streets instead of being upon the near side;'their course would have been directly across the street instead of diagonally across it, and they would have been a number of feet farther away from the taxicab when they first came into the view of the taxicab driver than they actually were. Moreover, there was nothing to prevent them from taking the course the statutes prescribed. There was no permanent or even temporary obstruction in their way, and their disobedience of the statute was intentional and wilful. Nor are there any presumptions in their favor. "Where two or more persons are equally guilty of a violation of law, and an accident ensues because thereof, the presumption is, if any presumption at all obtains, that the accident was the result of the combined fault. It is clear, therefore, that no one can with certainty say that the act of the respondents did not contribute to the injury. On the contrary, to our minds it very clearly appears that it did so contribute. Had the respondents been where the law required them to be, and where the taxicab driver had the right to expect them to be, the driver of the .taxicab could have avoided the accident by either stopping the taxicab or by turning-one way or the other into the intersecting street. He almost cleared them as it was and but a few more feet of space would have enabled him to have done so entirely. The conclusion we reach, however, can rest on another consideration. Since the respondents were themselves guilty of negligence, the burden was on them to show that their negligence did not contribute to the injury, and this burden they did not meet. The trial judge should have sustained some one of the various challenges the appellant interposed to the sufficiency of the evidence. The judgment is, therefore, reversed with instructions to dismiss the action. Parker, C. J., Mackintosh, Tolman, and Mitchell, JJ., concur.

Beeler, J. — This matter comes before this court at the instance of Lloyd Treseder, seeking a reversal of an order of the superior court for Pierce county discharging a writ of habeas corpus and remanding the plaintiff, Lloyd Treseder, to the custody of two extradition agents of the state of California. The plaintiff is a prisoner in the Pierce county jail, this state, and the two extradition agents are awaiting the outcome of this proceeding, anxious to return with him to that state. Prom the record before us, it appears that the governor of the state of California has heretofore issued and forwarded to the governor of this state a requisition for the extradition of the plaintiff, on the ground that he is a fugitive from justice from that state. The requisition is not in evidence, but the parties have stipulated that it provides in part: “Whereas, it appears by the application for requisition and copies of the complaint, warrant, information, judgment, sentence, and commitment to the state penitentiary at San Quentin, California, which I certify are authentic and duly authenticated in accordance with the laws of California(Italics ours.) It appears from the documents enumerated in the stipulation, all of which accompanied the requisition, that, on August 25,1927, in the police court of the city and county of San Francisco, California, the plaintiff was charged by complamt with the crime of burglary in the sécond degree; that thereafter he was bound over to the superior court of that state, and on August 29, 1927, was charged by information with the crime of second degree burglary in .that court; and on the 6th day of October, 1927, was duly convicted and sentenced to serve a term of imprisonment in the state penitentiary at San Quentin, California. In addition to the documents enumerated in the above quoted stipulation, three additional documents were also annexed to the requisition: (1) A certificate executed by the clerk of the state board of prison directors of California, stationed at the prison at San Quentin, certifying that, at a meeting of the board of prison directors held on January 19, 1929, it was determined'that Treseder “shall be confined in the state prison séven years from and after the date on which he was received by said warden.” (October 10, 1927.) (2) An affidavit by James B. Holohan, warden of the California state prison at San Quentin, in which he avers that Treseder was received at the prison on October 10,1927, to serve a sentence of seven years, as fixed by order of the prison board, for the crime of burglary in the second degree, and that, while assigned to labor in one of the highway camps in the state of California, he escaped, on May 18, 1929, from the guards in charge of a group of prisoners. (3) An application by James B: Holohan, the warden, addressed to the governor of the state of Cal ifornia, requesting that he make formal demand on the governor of this state for the extradition of the fugitive. This application, among other things, states: “In support of this application, I hereby attach certified copy of the Complaint sworn to before a magistrate charging said fugitive with the crime of burglary, second degree; a certified copy of the Information filed in the superior court of the state of California in and for the city and county of. San Francisco; certified copy of Judgment — Commitment issued thereon on the 6th day of October, 1927; and an Affidavit by me as warden of said California state prison showing that said Lloyd Treseder had escaped from custody during the term of his imprisonment and is now a fugitive from justice.” Subsequent to May 18, 1929, the date on which Treseder is alleged to have escaped, he was convicted of an offense against the United States government and was sentenced to serve a term of imprisonment in the United States penitentiary at McNeil’s island. He was discharged from that penal institution on September 9, 1931, and on that day was taken into custody by the sheriff of Pierce county on a criminal warrant based upon a complaint, properly sworn to, charging him with being a fugitive from justice from the state of California. On September 15, the plaintiff caused a writ of habeas corpus to be issued in the superior court for Pierce county, which was made returnable in that court September 17, 1931. But before the return day, the governor of this state, on September 16, 1931, in obedience to the demand of the governor of the demanding state, issued an extradition warrant for the arrest of the plaintiff as a fugitive from justice. The defendant, in his return to the writ of habeas corpus, set up that the plaintiff was held in custody by tbe extradition agents of tbe state of California under a warrant of extradition issued by the governor of this state in accordance witb tbe laws and constitution of tbe United States and of tbe states of California and "Washington. Tbe plaintiff in bis reply denied that tbe extradition agents were accredited agents of tbe state of California, and alleged that tbe requisition for extradition issued by tbe governor of California, together witb tbe extradition warrant issued by tbe governor of tbis state, were void, and hence tbe extradition proceedings were of no effect. Upon these issues tbe matter came on for bearing before tbe superior court for Pierce county. That court sustained tbe extradition proceedings, dismissed tbe writ of habeas corpus, and remanded tbe plaintiff to tbe custody of tbe extradition agents. Tbe sole question to be determined is whether tbe requisition issued by tbe governor of tbe demanding state and tbe documents thereunto attached and certified to by him were properly authenticated; and whether those documents or pleadings, as well as tbe extradition warrant issued by tbe governor of tbis state, which necessarily rests upon tbe proceedings of tbe foreign state, are valid. Section 2, Article IY, of tbe United States constitution, provides: “A person charged in any state witb treason, felony, or other crime, who shall flee from justice, and be found in another state, shall, on demand of the executive authority of tbe state from which be fled, be delivered up to be removed to tbe state having jurisdiction of the crime.” Section 5278 of tbe United States Revised Statutes, enacted by Congress in 1793, prescribes tbe procedure necessary to put into effect tbe power conferred by tbe constitution, relating to extradition proceedings. It reads: “Whenever the executive authority of any State or Territory demands any person as a fugitive from justice, of the executive authority of any State or Territory to which such person has fled, and produces a copy of an indictment found or an affidavit made before a magistrate of any State or Territory, charging the person demanded with having committed treason, felony, or other crime, certified as authentic by the governor or chief magistrate of the State or Territory from whence the person so charged has fled, it shall be the duty of the executive authority of the State or Territory, to which such person has fled to cause him to be arrested and secured, and to cause notice of the arrest to be given to the executive authority making such demand, or to the agent of such authority appointed to receive the fugitive, and to cause the fugitive to be delivered to such agent when he shall appear. If no such agent appears within six months from the time of the arrest, the prisoner may be discharged. All costs or expenses incurred in the apprehending, securing, and transmitting such fugitive to the State or Territory making such demand, shall be paid by such State or Territory.” This court, in the case of Thorp v. Metzger, 77 Wash. 62, 137 Pac. 330, in passing upon the necessary essentials in order to justify the executive of this state to return a fugitive from justice to the demanding state, said: “By this constitutional provision and Congressional enactment, three things are necessary in order to authorize the executive of one state to order the return of a fugitive from justice to the state in which the crime was committed: First, the accused must be demanded as a fugitive from justice by the executive of the state from which he fled; second, the demand must be accompanied by a copy of the indictment, or an affidavit made before a magistrate charging the fugitive with having committed a crime in the demanding state; and third, a copy of the indictment or affidavit must he certified to by the executive of the demanding state.” These prerequisites were all complied with in the proceedings here under consideration. First, the governor of California has made a formal demand on the governor of this state for the return of the alleged fugitive. Second, the prisoner was originally charged by a criminal complaint in the police court of the city and county of San Francisco, California, with the crime of burglary in the second degree. This complaint was sworn to and verified by a judge of that court, as required by the laws of California, on August 25, 1927. This document alone is sufficient to support these extradition proceedings. But, in addition, we have the affidavit of the warden of the California state prison made in support of his application to the governor of that state. From his affidavit, it is made to appear that Treseder was received at the prison October 10, 1927, and that, pursuant to the order fixing sentence, he was required tó serve a term of seven years, but that, on May 18, 1929, and before his sentence expired, he escaped. The extradition warrant issued by the executive of this state recites that the same was issued in obedience to a demand made by the governor of California, “ . . . accompanied by affidavits, complaint, information, . . . and warrant whereby the said Lloyd Treseder is charged with the said crime and being a fugitive from the justice of said state and having taken refuge in the state of Washington, which are certified by said governor of California to be duly authenticated. ’ ’ This reference to “affidavits” can refer to none other than that of the warden which was attached to his application. Third, the governor of the demanding state certified these documents as being authenticated documents in accordance with the laws of that state, as shown by the stipulation heretofore noted. The supreme court of Missouri, in the case of Albright v. Clinger, 290 Mo. 83, 234 S. W. 57, had before it an extradition proceeding in many respects similar to the one now before us. There the relator was sentenced and imprisoned in the state penitentiary of Ohio. Later, he was paroled. He violated his parole by departing from the state of Ohio. Later, he was convicted of grand larceny in the state of Missouri and sentenced to imprisonment in the state penitentiary of that state, and, on the expiration of his sentence, was taken into custody by an agent of the state of Ohio on an extradition warrant. The warden of the Ohio penitentiary by application requested the governor of Ohio to issue a requisition for extradition on the governor of Missouri. The governor of Ohio incorporated an affidavit of the warden setting forth the facts as heretofore detailed. It was contended that the affidavit of the warden had not been properly authenticated. The court, in passing on the question, said: “It is contended that the sworn statement of the warden of the Ohio penitentiary made to the Governor of that State, in regard to the crime, conviction and flight of relator and incorporated in the application for a requisition for his return was not authenticated as required by the Federal statutes. (3 Fed. Stat. Ann. Sec. 905, p. 212, Sec. 907, p. 220.) [U. S. Comp. St. §§ 1519, 1521.] This contention is based on a misinterpretation of the meaning and purpose of these statutes. They refer, when properly construed, to the authentication, for evidentiary purposes, of legislative and judicial records and proceedings and of records kept in offices not pertaining to courts. Papers incorporated in the application at bar which came within the purview of these statutes were authenticated as therein required. The warden’s statement belonged to none of these classes; and it was sufficiently authenticated by the certification of the Governor of Ohio as being ‘authentic and as having been duly authenticated in accordance with the laws of that state.’ (Section 5278, p. 285, 3 Fed. Stat. Ann.) [U. S. Comp. St. § 10126.] The United States Supreme Court in construing Section 5278, supra, has held that in the certification by the demanding Governor of the authenticity of the indictment or other formal charge, that the person named is a fugitive from justice, embodies the essentials necessary to call for action on the part of the Governor of the asylum state. (Ex parte Reggel, 114 U. S. 642.) [5 Sup. Ct. 1148, 29 L. Ed. 250.] A conclusion flowing from the rule as thus announced is that the demanding Governor is the only proper person to determine the authenticity of papers incorporated in an application for a requisition. While his certification does not make the charge a crime, it authenticates that which does make it so and for this purpose it is conclusive. (Kurts v. State, 22 Fla. 36.) [1 Am. St. Rep. 173.]” The rule announced in the Albright case, supra, is sound and especially applicable to the facts now before us. When the governor of California authenticated the documents, including the affidavit of warden Holo-han which accompanied the requisition, he was satisfied with their authenticity. This satisfies the statute, in the absence of any showing that the documents were fabricated or spurious. But learned counsel for the plaintiff earnestly contends that the extradition proceedings cannot be bottomed upon the criminal complaint filed in the police court of the city and county of San Francisco, for the reason that, when the plaintiff was bound over to the superior court, he was charged by an information filed in that court, and as a result that complaint became functus officio. The argument is that the complaint, having served its purpose, is no longer an existing document. The argument is ingenious but not convincing. A person is “charged” with crime after his conviction as well as before. In the case of In re Hope, 10 N. Y. Supp. 28, it appears that the governor of Delaware had issued a requisition upon the governor of the state of New York for the return to the former state of prisoner Hope. It was there said: “The papers accompanying the requisition consist of a copy of an indictment against Hope for burglary, and a record of conviction thereunder in Delaware, showing his sentence for 10 years, and proof by affidavit that he escaped from jail with over 9 years of such sentence unserved. His return to that state is demanded for the purpose of compelling him to serve out the remainder of his unexpired sentence. The requisition was honored by me pro forma, and the prisoner arrested, and now, after a full hearing has been had, the question arises whether the warrant should not be revoked. Mr. Charles W. Brooke, the prisoner’s counsel, insists that the requisition should be revoked, upon the ground that there is no authority under the constitution and the laws for the extradition of an escaped convicted prisoner. He argues that a person can only be returned to another state to answer a charge made against him upon which no conviction has yet been had. The broad ground is taken that there is no legal remedy whatever provided to secure his return where a convicted felon escapes from one state into another. If this be true, it is new doctrine, indeed, and discloses a lamentable defect in our criminal laws. The constitutional provision relating to interstate extradition (article 4, §2, subd. 2), declares that ‘a person charged in any state with treason, felony, or other crime, who shall flee from justice ‘and be found in another state, shall ... be delivered up, to be removed to the state having jurisdiction of the crime. ’ It is seriously urged that a person cannot be deemed to be ‘charged’ with a crime when he has already been convicted for such crime. It seems to be claimed that the ‘charge’ no longer exists because it is deemed merged in the conviction. It is also urged that the law-writers have laid it down in the books that the declared object of an extradition is the removal of the person charged with the crime for the purpose, of his being subsequently tried upon the charge presented against him, and that extradition cannot be invoked for any other purpose. This is ordinarily so, and correctly states the general rule. These expressions to be found in the books, however, have reference, not to exceptional instances, but to the usual class of cases where offenders have fled from one state to another prior to apprehension or conviction. Such flights are common, while escapes after conviction are rare. It is clear that in enunciating a general proposition there waS no intention of excluding or exempting convicted escaped persons from liability to extradition. No narrow or strained construction should be placed upon the word ‘charged,’ as used in the constitution in the federal statute. It is broad enough to include all classes of persons duly accused of crime. A person can be said to be ‘charged’ with crime as well after his conviction as before. The conviction simply establishes the charge conclusively. An unsatisfied judgment of conviction still constitutes a ‘charge’ within the true intent and meaning of the constitution'. An indictment or affidavit merely presents the charge, while a conviction proves it. To warrant extradition the statute requires an indictment or affidavit charging a crime, but if, in addition thereto, there is also presented a record of conviction, the case is not weakened but rather strengthened. The public purpose to be effected by extradition must be taken into consideration in determining the question. Its object is to prevent the successful escape of all persons accused of crime, whether convicted or unconvicted, and to secure their return to' the state from whence they fled, for the purpose of punishment. It is invoked to aid the administration of criminal justice, and to more certainly insure the punishment of the guilty. The construction contended for by the prisoner’s counsel would defeat the ends of justice in many instances, and it is conceded that there is no express decision favoring it. It has been usual to grant extradition in similar cases. The Case of Carter (decided by me on July 10,1885) was just such a case, although this precise point was not then raised. In Dolan’s Case, 101 Mass. 219, and in Hollon v. Hopkins, 21 Kan. 638, the prisoners were returned by extradition to other states to serve out unexpired sentences, and no such question seems to have been raised as to the legality of the proceedings. This first point raised by the prisoner’s counsel seems altogether too technical, and I am constrained to overrule it.” (Italics ours.) See, also, Drinkall v. Spiegel, 68 Conn. 441, 36 Atl. 831, 36 L. R. A. 486; Hughes v. Pflanz, 138 Fed. 980. The plaintiff next contends that there is no proof showing that the alleged fugitive had not fully served his sentence. There are two answers to this contention: First, the affidavit of the warden shows that Treseder escaped before he had completed his sentence; and second, the plaintiff offered no proof at the hearing on the writ of habeas corpus that he had been paroled or discharged at any time prior to the expiration of his sentence. The burden rested upon him at that hearing to prove that he was not a fugitive from justice. This he failed to do. “It is well settled that the presence of the accused in another state is sufficient, if unexplained and uncon-tradicted, to warrant his return to the demanding state upon formal and regular requisition, and it is incumbent upon the petitioner for habeas corpus, seeking to defeat extradition, to establish that he is not a fugitive from justice.” Ex parte Baker, 33 Okla. Cr. 413, 244 Pac. 459. See, also, State ex rel. Arnold v. Justus, 84 Minn. 237, 87 N. W. 770, 55 L. R. A. 325; Albright v. Clinger, supra. And finally, the plaintiff'contends that the extradition proceedings are void because, when the plain tiff was bound over from the municipal court of the city and county of San Francisco to the superior court of California, he was charged by an information which was unverified. An information filed in the superior court, under the penal code of California, § 809, need not be verified. See, also, United States v. Collins, 79 Fed. 65. However, the information as well as the complaint, judgment and state prison commitment are before us as an exemplification of record certified to by the presiding judge of the superior court of San Francisco county, California. Furthermore, all pleadings and documents were properly authenticated by the chief executive of the demanding state, with the possible exception of the certificate of the state board of prison directors, which document in any event is mere surplusage. The plaintiff has not called to our attention wherein the pleadings or documents which accompanied the requisition, and which were certified to by the chief executive of the demanding state, were not properly authenticated as required by the laws of that state. In the absence of such showing, we shall presume that the documents of the foreign state, authenticated by the governor, are genuine. For an exhaustive and scholarly review of the authorities on that point, see People ex rel. MacSherry v. Enright, 184 N. Y. Supp. 248. That court, in part, said: “The constitutional provision regarding extradition from one state to another was adopted to promote justice, to aid the states in enforcing their laws, and not to shield malefactors. The supreme court of the United States has emphatically announced its adherence to the doctrine that a faithful and vigorous enforcement of the provisions relating to fugitives from justice is vital to the harmony and welfare of the state, and that, while a state should take care that the rights of its people are protected against illegal action, both it and the judicial authorities throughout the Union should equally take care that the provisions of the Constitution be not so narrowly interpreted, as to enable offenders against the laws of a state to find a permanent asylum in the territory of another state. The action of the governor in issuing his warrant should not be nullified by the courts, unless it conclusively appears that the accused is not a fugitive from justice and that the issuance of the warrant was in plain contravention of law.” See, also, People v. Stockwell, 135 Mich. 341, 97 N. W. 765; In re Hooper, 52 Wis. 699, 58 N. W. 741; Moore on Extradition, vol. 2, sec. 551. The writ of habeas corpus is dismissed, and the prisoner, the plaintiff here, is remanded to the custody of the extradition agents of the state of California. It is so ordered. Tolman, C. J., Mitchell, Parker, and Herman, JJ., concur.

Per Curiam. The petitioner is an inmate of the penitentiary at Walla Walla. On May 16, 1950, he entered a plea of guilty in King county to an information for petit larceny. Subsequently, but before sentence had been pronounced, he was adjudicated to be an habitual criminal by reason of having been convicted in Oregon of the crime of knowingly uttering and publishing a false and forged bank check, which is a felony in the state of Washington. RCW 9.92.090 [cf. Rem. Rev. Stat., § 2286] provides that the penalty for such an habitual criminal as the petitioner, shall be “imprisonment in the state penitentiary for not less than ten years.” This minimum penalty, however, is not the sentence prescribed by law for the reason that RCW 9.95.010 [cf. Rem. Supp. 1947, § 10249-2, part] provides, inter alia: “The maximum term to be fixed by the court shall be the maximum provided by law for the crime of which such person was convicted, if the law provides for a maximum term. If the law does not provide a maximum term for the crime of which such person was convicted the court shall fix such maximum term, which may be for any number of years up to and including life imprisonment, but in any case where the maximum term is fixed by the court it shall be fixed at not less than twenty years.” (Italics ours.) On June 16, 1950, the trial court erroneously imposed a sentence of imprisonment in the penitentiary “for not less than ten years.” On December 22, 1950, the trial court entered an order directing an armed guard to return the petitioner to King county. On February 1, 1951, the trial court entered an order setting aside the judgment and sentence, declaring it to be erroneous under RCW 9.95.010 [cf. Rem. Supp. 1947, § 10249-2, part]. On the same day, a nunc pro tunc judgment and sentence, as of June 16, 1950, was entered by the trial court, sentencing the petitioner to a term of not more than twenty years. Petitioner now seeks release by writ of habeas corpus. His theory is that the trial court had no power to vacate, set aside, or correct the first sentence imposed upon him; that the second sentence was therefore void; and that he can not be held under it. As to the first sentence, he contends that it was erroneous so that there is no valid judgment and sentence under which he can be held. Petitioner’s theory that the trial court was powerless to correct the first sentence imposed upon him, is predicated upon In re Lucas, 26 Wn. (2d) 289,173 P. (2d) 774, in which it was held that Rem. Rev. Stat., § 464 [cf. RCW 4.72.010], governing the vacation of civil judgments, applied to criminal judgments and sentences. It further held that a “mistake of the judge in pronouncing sentence” is not one of the statutory grounds for the vacation of judgments within the purview of the statute. The Lucas case has been overruled sub silentio on numerous occasions. In re Bass v. Smith, 26 Wn. (2d) 872, 176 P. (2d) 355; In re Dill v. Cranor, 39 Wn. (2d) 444, 235 P. (2d) 1006. We now specifically overrule the Lucas case and hold that the civil statute for the vacation of judgments, does not apply in criminal cases. When a sentence has been imposed for which there is no authority in law, the trial court has the power and duty to correct the erroneous sentence, when the error is discovered. This does not, of course, affect the finality of a correct judgment and sentence that was valid at the time it was pronounced. In the instant case, the first sentence was erroneous, and the trial court properly vacated it and imposed a sentence that was correct in all particulars, under which the petitioner is now being held. The petition for a writ of habeas corpus is denied.

Mount, J. This action was brought by the respondent to recover damages for the loss of a horse, and for injuries to a wagon and harness, caused by another team of horses running away and colliding with the team belonging to the respondent. The cause was tried to the court and a jury. A verdict was returned in favor of the respondent for $245, against appellants Bullock and wife, the owners of the team which ran away, and against James Harvey, the driver thereof. This appeal is prosecuted by Bullock and wife from a judgment upon the verdict. Defendant Harvey has not appealed. The complaint alleged, in substance, that the defendant Harvey was employed by the appellants as driver of a team of horses, and that Harvey negligently permitted the team' to run away and into the respondent’s horses and wagon,, causing the injury complained of. The complaint also alleged that the team which ran away was wild, dangerous, and unsafe to be driven upon the public Streets except by the most competent driver, and that the appellants were negligent in employing an incompetent driver. The appellants denied generally the allegations of the complaint, and then alleged, by way of affirmative defense, that they were the owners of a certain team of horses, and that on the date of the accident they let this team to the defendant Harvey, to be used exclusively by said Harvey for his own purposes and not for the business of the appellants, and that the said Harvey had the sole control of said horses, and if the respondent was damaged by reason of the use of said horses, the appellants were not responsible. It was conceded at the trial of the cause that the team of horses which ran away belonged to the appellants, and was in charge of the defendant Harvey on that day. The evidence on the part of the respondent tended to show that Harvey left the team standing in the street in Seattle, without being hitched or guarded in any way, and while he was in a store the team ran away and did the damage complained' of; that immediately after the team had run into the respondent’s team and wagon, the defendant Harvey came up, and when asked whom the team belonged to, said: “I am just working for Mr. Bullock. He owns the outfit.” There was evidence to the effect that the team which ran away was nervous and of a high-spirited disposition. At the close of respondent’s evidence, the appellants moved the court for a directed verdict, which motion was denied. The evidence of the appellants was to the effect that the defendant Harvey had been employed by them for some time, but in the capacity of a coal carrier and not as a driver of any team; that on the date of the accident the team of horses was hired to defendant Harvey, for his personal use and in no way for the appellants. On this appeal the main contention of the appellants is that the evidence is insufficient to show that Mr. Harvey was the servant of the appellants at the time of the accident, and that his declarations at that time are inadmissible to show that he was the servant of the appellants. In cases of this kind, where it is shown that the wagon and team doing damage belonged to the defendants at the time of the injury, that fact establishes prima facie that the wagon and team were in possession of the owner, and that whoever was driving it was doing so for the owner. Edgeworth v. Wood, 58 N. J. L. 463, 33 Atl. 940; Schulte v. Holliday, 54 Mich. 73, 19 N. W. 752; Norris v. Kohler, 41 N. Y. 42; Seaman v. Koehler, 122 N. Y. 646, 25 N. E. 353. This being the rule, it is plain that the plaintiff made a case for the jury, and that the court did not err in refusing to direct a verdict in favor of the defendants. If the declaration of the driver at the time of the accident is as a rule not admissible to prove his employment, no error can be based on that declaration in this case, because the evidence was not objected to at the time it was given,, and also because that presumption followed as a matter of law, as we have seen above. It was therefore harmless. Appellants argue that there is no evidence that the team which ran away was a vicious or dangerous team. If we should agree with this contention, there was still enough to go to the jury on the other branch of the case. The trial coui’t was not requested to take this question away from the jury, and it is not shown that the verdict was based on such facts. The controlling question in the case was, whether the defendant Harvey was in the employment of the appellants, or whether he had hired the team for his own personal use. This question was one for the jury under the evidence. We find no reversible error in the case, and the judgment must therefore be affirmed. Rudkin, C. J., Crow, Dunbar, and Parker, JJ°., concur.

Fullerton, J. In these proceedings the several relators named assail the constitutionality of the act of March 15, 1907, known as the “Primary Election Law.” Laws 1907, p. 457. While the questions presented are not the same in all the proceedings, they present many common questions, and can best be considered by treating the several proceedings as one, noticing under each separate title only those questions applicable to that particular proceeding. It is proper to mention, also, that the exigencies of the case require an immediate decision, and that it is for this reason that our discussion of the questions presented is somewhat perfunctory, not that we do not realize their importance and difficulty. With this explanation, we pass directly to the consideration of the merits of the controversy. It is first contended that the act is in violation of art. 11, § 19, of the constitution, which provides that: “No bill shall embrace more than one subject and that shall be expressed in its title.” The argument is that the act contains matters not germane to its title, so intermingled with matters that are germane that the valid portion cannot be separated from the invalid portion without leaving the act meaningless; and that the act, being thus void in part, and the portions remaining failing to constitute a complete and uniform act, it is void as a whole. The title of the act is as follows: “An Act relating to, regulating and providing for the nomination of candidates for public office in the state of Washington, and providing penalties for the violation thereof, and declaring an emergency.” This court has often held that the title of an act, in order to comply with the constitutional provisions above quoted, need not be an index to the contents of the act; that the purpose of the title is to call attention to the subject-matter of the act so that any one reading it may know what matter is being legislated upon, and it is sufficient when it is broad enough to accomplish that purpose. For the various provisions constituting the act, the body of the act must be consulted, the title being neither expected nor required to give details. State v. Scott, 32 Wash. 279, 73 Pac. 365; State v. Fraternal Knights & Ladies, 35 Wash. 338, 77 Pac. 500; Weed v. Goodwin, 36 Wash. 31, 78 Pac. 36; State ex rel. Osborne, Tremper & Co. v. Nichols, 38 Wash. 309, 80 Pac. 462; State ex rel. Zenner v. Graham, 34 Wash. 81, 74 Pac. 1058; Shortall v. Puget Sound Bridge & Dredging Co., 45 Wash. 290, 88 Pac. 212; State v. Winsor, ante p. 407, 97 Pac. 446. The title of the act in question, it will be observed, is at once broad and comprehensive. Any provision which legitimately relates to, regulates, or provides for the nomination of candidates for public office in the state of Washington, can be enacted thereunder. So measured, we do not find anything within the act that is not strictly within the title. The provisions most especially dwelt upon as being outside of the title are §§30 and 31, which provide that candidates who contest for a primary nomination must file an itemized statement of their expenditures incurred while endeavoring to secure a nomination, under a penalty for failure to do so; those parts of §§'7, 9, 10, 21, and 36, and other sections,' which relate to the nomination of candidates for members of the house of representatives and United States senator; § 5 providing for the payment of fees by candidates for Congressional office; and §' 38 providing who shall be considered as nominees at the primary election and entitled to have their names appear on the official ballot. But we think even these sections fairly germane to the title. The sections relating to filing itemized statements of the expenditures incurred are objectionable on account of their indefiniteness, rather than for the reasons suggested; but the legislative intent is clearly understood even on this point, and this is sufficient to comply with the constitutional requirements. The indefiniteness relates to the time when these statements are required to be filed, but in such a case the rule is that they must be filed within a reasonable time. But more than this, these sections could be eliminated without affecting the remainder of the act, and it is of but little moment in so far as the cases of these relators are concerned whether we hold the provisions valid or invalid. The nomination of candidates for the house of representatives in Congress is clearly a matter for state regulation, and such regulation may be properly provided under a title relating to the nomination of candidates for public office in the state of Washington. The title does not' necessarily mean that the office for which the person is nominated shall be in the state of Washington; it is enough if the nomination itself is to be made therein. The provisions regulating candidates for the United States senate fall within the same rule. It must be remembered that we are discussing the question whether such a provision may properl}' be enacted under a title such as this act possesses, not the effect or binding force of a nomination obtained thereunder. This latter question is not in these proceedings, and we express no opinion thereon. Again, it can be said of these provisions, as was said of the provision relating to the filing of the lists of expenditures, they can be eliminated without affecting any of the rights of these relators or the validity of the remainder of the act. The provision in relation to fees is within the scope of the act. The right to exact a reasonable fee for the privilege of running for office may be sustained on the principle that fees in actions and proceedings in courts and for filing and recording papers are sustained, namely, that those who seek the benefit of a particular proceeding provided by law may be compelled to reimburse the state for a portion of the costs the state incurs in maintaining the instrumentalities necessary to carry into effect the particular proceeding. In other words, the state but asks the candidates for office under a particular law to reimburse it for a part of the expenses it incurs in carrying that law into effect. This clearly the state may lawfully do. Lastly, under this head it is objected that the legislature cannot, under an act providing for the nomination of candidates, legislate with reference to the ballot to be used at the general election. But we think this contention untenable. The only purpose of the primary election was to select candidates whose names shall appear on the official ballot, and this being its sole purpose, any provision relating to that purpose must be germane to the act. We conclude, therefore, that this act in its entirety is within the scope of its official title. It is also contended that the act is in violation of § 37, art. 11, of the constitution. That section provides that no act shall ever be revised or amended by mere reference to its title, but the act revised or section amended shall be set forth at full length. The evil which this provision of the constitution was intended to remedy was a habit, which often proved pernicious, Df amending statutes by inserting therein certain words or substituting one phrase for another, without setting forth the act or section as it would read with the amendment inserted. This form of amendment was well calculated to mislead the careless as to its effects, and was, perhaps, sometimes drawn in that form for the express purpose of misleading, and the constitution makers wisely put a check upon it. But the provision was never intended to prevent the enactment of statutes complete in themselves which repealed or amended existing statutes. Indeed, the very purpose of a statute is to change the existing laws as to the particular matter legislated upon, and if the legislature is without power to pass such an act without first hunting up all of the provisions of the existing laws affected by it,, and setting them forth as they will stand as amended, legislation is at a standstill. The act in question, as we view it, is a complete act within itself. While it necessarily changes existing statutes by superseding some and limiting the effect of others, it requires no reference to other statutes to determine its meaning in the sense prohibited by the constitution. True, it refers to other statutes in terms, and provides that in certain instances the statute referred to shall not be affected by the terms of the new statute; yet this, we think, is not amending or revising an act by mere reference to its title. The act referred to is in no wise altered or amended; no change is made in its text; its scope only is limited to the particular cases enumerated. This we hold does not require the setting forth at full length of the statute affected. The case of Copland v. Pirie, 26 Wash. 481, 67 Pac. 227, 90 Am. St. 769, is not contrary to this view. As explained in the case of In re Dietrich, 32 Wash. 471, 73 Pac. 506, we there held that the statute under consideration was merely amendatory of a former law — not an independent act — and as such could not stand alone, or be intelligently applied without’ a reference to the former law. Section 12 of the primary act provides that, when a voter at the primary election demands the ticket of a particular partjr and his right to vote that ticket is challenged, he shall make oath or affirmation that he intends to affiliate with the party whose ballot he demands at the ensuing election, and that he intends to support generally the candidates of that party. It is contended that this section adds a requirement to the qualifications of electors in addition to the constitutional requirements, and for that reason renders the entire act void. Were the primary election so far such an essential part of the general election as to make the constitutional provision relating to the qualification of electors entitled to vote at the general election applicable thereto, then there would be force in this obj ection; but we do not think the sections of the constitution providing the qualifications of electors applicable to the primary election provided for by this statute. It is not the purpose of the primary election law to elect officers. The I purpose is to select candidates for office to be voted for at the f general election. Being so, the qualifications of electors pro- j! vided by the constitution for the general election can have no ■ application thereto. From the fact that the state has assumed to provide an official ballot for the general election, it must resort to some process of selection to determine the candidates whose names shall appear upon the ballot. It cannot print the names of the entire list of electors on the ballot, nor can it print thereon the name of every elector who may choose to become a candidate. Such a proceeding would make the ballot too cumbersome for any practical purpose, and in consequence the election a farce. Since, then, the state by its legislature must resort to some process of selection, the only limitation that can be put thereon is that the process adopted be reasonable. The legislature should not go to extremes in either direction. To print the names of every person who desires to become a candidate would be an extreme in the one direction, while to print only the names of the candidates of the party dominant at the last preceding election would be an extreme in the other. But between the extremes it is at once apparent that there is a wide field for choice, within which it cannot safely be said that the legislature has violated its just discretion. The method here adopted the court cannot say is unreasonable. While it deprives some of the minority parties of privileges which might properly have been granted them, yet the legislature must protect the state against the future. A too great multiplication of parties might result if all associations of persons claiming to be such were so recognized — three tailors of Tooley street once claimed to be “the people of England” — thus entailing upon the state excessive costs in the conduct of primary elections without corresponding benefits. No doubt the qualification here complained of was inserted to protect the integrity of political parties. The legislature had provided for party ballots for use at the primary election, and it was but just that some restraint be put upon the privilege of demanding and voting a particular ballot. So far, therefore, from being an unwarranted restriction, it seems to us that if party integrity is to be preserved, this provision is highly proper and commendable, and could have been made with profit much more stringent than it actually is. The last general objection to be.noticed is that the law tends to destroy political parties. Counsel confess that they can find no specific provision of the constitution on which to base the contention, but they assert the general utility and necessity of parties, and argue therefrom that legislation tending to destroy them must receive the condemnation of the courts. It has seemed to us, however, that this is a political rather than a judicial question, and that an appeal from the legislative decision must be made to the people rather than to the courts. We are aware that some of the conclusions reached by us on the questions discussed are not in accord with the decisions of courts of other jurisdictions on similar questions. We have not followed them because we feel them to be unsound. It would have given us more satisfaction to have noticed them at the proper place, but want of time and space forbids. The fact is mentioned here out of deference to counsel appearing for the respective parties, whose learning and patient research have brought before us all of the law extant upon the subjects discussed. We will now notice the particular contentions. At its session in 1907, the legislative assembly created a separate judicial district from the counties of Adams, Benton and Franklin. The relator Zent was appointed judge thereof to hold office until the next general election and until his successor was elected and qualified. In due time he filed his declaration of candidacy for nomination at the primary election. The respondent Holcomb also filed a declaration of candidacy for the office of superior judge in the district of the counties named, but did not specify therein for what term he desired to become a candidate. The secretary of state, before whom the declaration was filed, construed the declaration as one for the term commencing on the second Monday in January, 1909, and placed his name upon the primary ballot as a non-partisan candidate for judge, along with the name of the relator Zent. Holcomb received a majority of the votes cast at the primary election, and was declared the nominee by the canvassing board. Zent applies to restrain the issuance of a certificate of nomination to him, and to prevent the certification of his name to the auditors of the several counties named, as the candidate for judge whose name shall appear on the official ballot. In addition to the general obj ections to the constitutionality of the act already discussed, the relator makes the point that the construction placed upon the respondent’s declaration was unwarranted and void, and that in consequence there is no nominee for the office of judge of the superior court for the counties named. This contention is unfounded. There was indeed a short and a long term for which a judge might have been nominated, but the primary law applies to the long term only, unless specially designated otherwise. By the second section of the act it is expressly provided “that this act [the primary election law] shall not be held to refer to special elections for filling vacancies for unexpired terms . while § 38 provides that, where there is a vacancy in the office of judge, candidates may announce themselves for either the long or the short term. But since there was no announcement made, we think the declaration could only apply to the term commencing on the second Monday in January, 1909, and the secretary of state correctly so ruled. The relator White sought to be nominated for the office of judge of the superior court of King county, by petition as prescribed in §§ 1350 and 1352 of Ballinger’s Code (P. C. §§ 4932, 4934.) To that end he procured a certificate of nomination subscribed by the requisite number of electors, and proffered the same for filing at the office provided therein for receiving the same. The filing was refused, and this proceeding was instituted to compel the filing of the certificate and to require the proper officers to print his name on the official ballot as a candidate for judge of the superior court of King county. In addition to urging the invalidity of the primary law, he contends that, if the court deems the act constitutional, he is nevertheless entitled to have his name appear upon the official ballot for the reason that the statute under which he is proceeding is still in force, not having been superseded or modified by the primary election law. The section of the primary law relating specially to the nomination of judges reads as follows: “Sec. 38. Judges of the supreme and superior courts, state senators and representatives shall not be considered state officers within the meaning of the provisions of this act relating to first choice and second choice voting. When there are to be elected at any general election, two or more judges of the supreme court or superior court of any county, the candidates for each respective office whose names are to be placed upon the general election ticket, shall be determined as follows: The number of candidates, equalling the number of judicial positions to be filled, who receive the highest number of votes at the primary election, shall be candidates for such respective offices, and their names shall appear on the general election ticket under the designation of such respective offices. Where a vacancy or other cause shall necessitate the election of a judge for a short term and at the same election one or more judges are to be elected for the full term, candidates may announce themselves for either the short or full term and the ballots shall be arranged accordingly.” Laws 1907, p. 476. Manifestly it was the purpose of this provision to do away with all other forms of nomination, in so far as the official ballot is concerned, than the one therein prescribed. The legislature by this section, whether wisely or not, has seen fit to provide for placing on the official ballot only the names of those candidates who have been nominated in the particular way pointed out. This we hold the legislature had the right to do, it being a reasonable exercise of its powers. True, it deprives minority parties, casting less than ten per centum of the entire vote, of voting at the primary election for candidates whose names are entitled to appear on the official ballot, and prevents the people from selecting by petition particular candidates and having their names put upon the official ballot. But it deprives no one of the right to vote for the candidate of his choice at the general election. He may write or paste the name of his candidate thereon and have the same counted as rightfully as if his name were printed on the ballot. This is a right the courts are uniform in maintaining. With possibly one exception, every court which has passed upon the question maintains the right of the individual elector to vote for the person of his choice for a particular office, regardless of whether his name is on the official ballot or not. Since, therefore, the elector is not deprived by this act of voting at the general election for the candidate of his choice, we hold the act within the rightful powers of the legislature. The relator Pendergast presents the question presented by the relator White, and his application requires no separate discussion. The relator Coon was a candidate for the republican nomination for the office of lieutenant governor, there being more than four candidates for that nomination. The relator received a plurality of all the first choice votes cast, but failed to receive more than forty per centum of such votes, and likewise failed to receive a plurality of all first and second choice votes. Notwithstanding these facts, he now contends that his name should appear on the official ballot as the republican nominee for the office, and by this proceeding seeks to compel the secretary of state to so certify the ballot. The basis for this contention is the claim that the second choice provisions of the direct primary law are unconstitutional. So far as this particular case is concerned, it would avail the relator nothing to uphold his contention as to the invalidity of the law, for the legislature has declared in express terms that a candidate receiving less than forty per centum of the first choice votes shall not be the nominee where there are four or more candidates for any state office, and should we declare the alternative method of nomination void, it would simply nullify the law as to that particular office. It would not result in the nomination of a candidate who under the express terms of the law did not receive the requisite vote. But this feature of the law has been assailed in other cases, and we deem it proper to dispose of the contention made at this time. The principal argument against the second choice provision is that it interferes with the freedom of election guaranteed by the constitution, and compels the elector to vote for a person other than the candidate of his choice. This contention is untenable: The elector has the utmost freedom of choice in casting his first choice ballot, though his choice will not avail him unless at least forty per centum of his party agree with him. It was entirely competent for the legislature to provide that a candidate receiving less than forty per centum of his party vote should not be deemed its nominee, and with such a provision in the law it was incumbent on the legislature to provide some other method of nomination whenever a candidate failed to receive the required vote at the primary. It might have provided a second primary, but a second primary would perhaps prove equally fruitless, unless the number of candidates to be voted for were restricted. If the candidates to be voted for at the second primary were restricted to the two or three receiving the highest vote at the former primary, then all those who did not favor these particular candidates might complain with equal justice that they were compelled to vote for candidates other than those of their choice. So long as voting is by ballot, an official ballot is a convenience if not a necessity, and some authority vested somewhere in government must determine the names which shall appear on that ballot, and those names must necessarily be few in number; and, we repeat, any reasonable method prescribed by the law-making power which accomplishes this result must be sustained by the judicial department of government. The courts have no concern with its wisdom or policy. The several applications are denied. Hadley, C. J., Dunbar, Mount, and Rudkin, JJ., concur.

Ireland, J. In this case we determine whether a defendant who was misinformed of a direct consequence of a guilty plea is required to show the materiality of that consequence to his decision to plead guilty in order to be entitled to a remedy for an involuntary plea. We hold that a defendant who is misinformed of a direct consequence of his guilty plea need not make a special showing of materiality in order to be afforded a remedy for an involuntary plea. FACTS On March 21, 2000, Isadore pleaded guilty to second degree burglary and third degree assault. The prosecutor and defense counsel were unaware that, by statute, Roy Lee Isadore’s sentence required community placement following the period of incarceration. The community placement and community supervision check-boxes on the plea form were left blank. Before accepting the plea, the court asked the prosecutor if community placement was part of the sentence and the prosecutor responded that community placement did not apply. The trial court accepted the plea and sentenced Isadore to 54 months, a standard range sentence. On October 2, 2001, the Department of Corrections notified the prosecutor’s office that Isadore’s sentence should have included mandatory one-year community placement. Former RCW 9.94A.120(9)(a)(i) (2000). On the State’s motion, the trial court amended Isadore’s sentence on December 13, 2001, adding a one-year community placement to the sentence. On January 2, 2002, Isadore filed a personal restraint petition asking the Court of Appeals to strike the amendment to the sentence and to specifically enforce the plea agreement. The court dismissed the petition, holding that Isadore “neither argues nor demonstrates that the defective information about community placement materially affected his decision to plead guilty.” Order Dismissing Petition at 2. Isadore petitioned for discretionary review in this court. In his pro se petition, Isadore asserted that he would not have pleaded guilty had he known of the mandatory community placement requirement. We granted review, and now grant his personal restraint petition. DISCUSSION Validity of Guilty Plea Due process requires that a defendant’s guilty plea be knowing, voluntary, and intelligent. Boykin v. Alabama, 395 U.S. 238, 242, 89 S. Ct. 1709, 23 L. Ed. 2d 274 (1969); In re Pers. Restraint of Stoudmire, 145 Wn.2d 258, 266, 36 P.3d 1005 (2001). A guilty plea is not knowingly made when it is based on misinformation of sentencing consequences. State v. Miller, 110 Wn.2d 528, 531, 756 P.2d 122 (1988). A defendant need not be informed of all possible consequences of his plea, but he must be informed of all direct consequences. State v. Ross, 129 Wn.2d 279, 284, 916 P.2d 405 (1996) (citing State v. Barton, 93 Wn.2d 301, 305, 609 P.2d 1353 (1980)). Mandatory community placement is a direct consequence of a guilty plea. State v. Turley, 149 Wn.2d 395, 399, 69 P.3d 338 (2003). “[F]ailure to inform a defendant that he will be subject to mandatory community placement if he pleads guilty will render the plea invalid.” Turley, 149 Wn.2d at 399. Failure to inform a defendant of sentencing consequences upon plea of guilty is also governed by court rule. Under CrR 4.2(f), a court must allow a defendant to withdraw a guilty plea if necessary to correct a manifest injustice. An involuntary plea produces a manifest injustice. Ross, 129 Wn.2d at 284 (citing State v. Saas, 118 Wn.2d 37, 42, 820 P.2d 505 (1991)); State v. Walsh, 143 Wn.2d 1, 8, 17 P.3d 591 (2001) (mutual mistake regarding sentencing consequences renders guilty plea invalid). In order to prevail on a collateral attack by way of personal restraint petition the petitioner must first establish that a constitutional error has resulted in actual and substantial prejudice, or that a nonconstitutional error has resulted in a fundamental defect which inherently results in a complete miscarriage of justice. See In re Pers. Restraint of Cook, 114 Wn.2d 802, 810, 812, 792 P.2d 506 (1990). These threshold requirements are justified by the court’s interest in finality, economy, and integrity of the trial process and by the fact that the petitioner has already had an opportunity for judicial review. In re Pers. Restraint of Cashaw, 123 Wn.2d 138, 148-49, 866 P.2d 8 (1994). Where the petitioner has not had a prior opportunity for judicial review, we do not apply the heightened threshold requirements applicable to personal restraint petitions. Instead, the petitioner need show only that he is restrained under RAP 16.4(b) and that the restraint is unlawful under RAP 16.4(c). In re Pers. Restraint of Garcia, 106 Wn. App. 625, 628, 24 P.3d 1091, 33 P.3d 750 (2001). In Cashaw, the petitioner challenged the actions of the Indeterminate Sentence Review Board in setting his minimum prison term. In granting Cashaw’s personal restraint petition, we stated that the threshold requirements normally required of personal restraint petitioners did not apply in Cashaw’s case because he had no prior opportunity to seek review of the board’s decision. We observed that the policies behind the threshold requirements are that “ ‘collateral relief undermines the principles of finality of litigation, degrades the prominence of the trial, and sometimes costs society the right to punish admitted offenders.’ ” Cashaw, 123 Wn.2d at 148 (quoting Cook, 114 Wn.2d at 809). We noted that none of those policies justify imposition of the threshold requirements when the challenge is to a decision from which the inmate has had no previous or alternative avenue of judicial review. Similarly, in Garcia, the petitioner brought a personal restraint petition challenging the Department of Correction’s revocation of good conduct time credits for failure to participate in chemical dependency treatment classes. He claimed that the treatment program violated his First Amendment rights. In discussing the standard of review to be applied, the court noted that Garcia had no previous or alternative avenue for obtaining judicial review. Therefore, the court held that Garcia was not required to satisfy the standard threshold requirements of a personal restraint petition; rather he was required to satisfy RAP 16.4 by showing that he was restrained and the restraint was unlawful. Garcia, 106 Wn. App. at 629. Likewise, in this case, the period for direct appeal had already passed when the term of community placement was added to Isadore’s original sentence. He has had no previous opportunity for state judicial review. Pursuant to RAP 16.4, Isadore need only show that he is restrained and that his restraint is unlawful. However, we also note that even if Isadore were required to meet the standard personal restraint petition requirements, he has done so in this petition. He alleges he was deprived of his constitutional right to due process because his guilty plea was not knowing, voluntary and intelligent. We have previously held that in order for a guilty plea to be deemed voluntary in the constitutional sense, a defendant must be informed of all direct consequences of his plea. Ross, 129 Wn.2d at 284 (citing Barton, 93 Wn.2d at 305). In this case, the State concedes that Isadore was not told at the time he pleaded guilty that his sentence would include mandatory community placement, a direct consequence. Nevertheless, the State argues that Isadore’s plea was valid and that he is not entitled to a remedy. The State argues that this court’s decision in State v. Acevedo, 137 Wn.2d 179, 970 P.2d 299 (1999), established a new test governing when a defendant can withdraw a guilty plea because of misinformation of direct consequences. The State further argues that Isadore fails this new test. In Acevedo, the noncitizen defendant was arrested for possession of cocaine with intent to deliver. Before accepting the defendant’s guilty plea, the trial court informed Acevedo that he may be subject to supervision by the Department of Corrections following his sentence. However, the plea form did not contain written notification of the community placement requirement. Acevedo sought to withdraw his guilty plea. The trial court denied the Acevedo’s motion, but the Court of Appeals reversed, ruling that the plea was involuntary. This court issued a plurality opinion reversing the Court of Appeals. The lead opinion stated that while mandatory community placement is generally a direct consequence, under the facts of Acevedo it was not a definite and direct consequence because the defendant was subject to deportation following his sentence and would likely never serve the community placement. Acevedo, 137 Wn.2d at 196. Furthermore, there was no evidence in the record showing that community placement was material to the defendant’s decision to plead guilty. Acevedo, 137 Wn.2d at 194, 203. The State argues that under Acevedo a defendant who is not informed of the direct consequences of his plea is not entitled to a remedy unless he establishes that the misinformation was material to his decision to plead guilty. The State argues that the record does not contain evidence objectively establishing that mandatory community placement was material to Isadore’s decision to plead guilty. In addition, the State argues that Isadore failed to establish that community placement was subjectively material to Isadore in deciding to plead. The State has misread the plurality opinion in Acevedo. A majority of the court in Acevedo held that community placement was a direct consequence of Acevedo’s guilty plea. The three concurring justices and the two dissenting justices stated that mandatory community placement was a direct consequence of the guilty plea. Acevedo 137 Wn.2d at 204-05 (Johnson, J., concurring). Moreover, the materiality test requested by the State conflicts with this court’s jurisprudence. This court has repeatedly stated that a defendant must be informed of all direct consequences of a guilty plea, and that failure to inform the defendant of a direct consequence renders the plea invalid. Barton, 93 Wn.2d at 305. In addition, this court has repeatedly stated that mandatory community placement is one of those direct consequences of which a defendant must be informed in order for him to make an intelligent and voluntary plea. Turley, 149 Wn.2d 395. A plurality opinion has limited precedential value and is not binding on the courts. State v. Gonzalez, 77 Wn. App. 479, 486, 891 P.2d 743 (1995). The Acevedo opinion should not be relied upon as establishing a new analytical framework for determining the validity of a guilty plea. In addition, the facts of Acevedo were unique in that the defendant there was facing deportation following his sentence and it was very possible that the mandatory community placement would never occur. The Acevedo court distinguished its facts from the facts of Ross; there is nothing to suggest the Acevedo court intended to alter the longstanding rule applied by Ross, that a defendant must be informed of the direct consequences of his guilty plea. Acevedo should not be expanded to apply to cases with dissimilar facts. We decline to adopt an analysis that requires the appellate court to inquire into the materiality of mandatory community placement in the defendant’s subjective decision to plead guilty. This hindsight task is one that appellate courts should not undertake. A reviewing court cannot determine with certainty how a defendant arrived at his personal decision to plead guilty, nor discern what weight a defendant gave to each factor relating to the decision. If the test is limited to an assertion of materiality by the defendant, it is of no consequence as any defendant could make that after-the-fact claim. Rather, we adhere to the analytical framework applied in Ross and Walsh. In this case, it is undisputed that when the trial court asked about community placement, the prosecutor responded that community placement did not apply. It is undisputed that community placement was not indicated on the plea form. Defendant Isadore was not informed of this direct consequence of his plea. Therefore, under Ross and Walsh, Isadore’s plea was not intelligent or voluntary and Isadore is entitled to a remedy. Isadore’s plea is invalid and his restraint unlawful. The defendant has the initial choice of specific performance or withdrawal of the plea. Turley, 149 Wn.2d at 399 (citing Miller, 110 Wn.2d at 536). “The defendant is entitled to the benefit of his original bargain.” State v. Tourtellotte, 88 Wn.2d 579, 585, 564 P.2d 799 (1977). Once the defendant has made his or her choice, the State bears the burden of showing that the remedy chosen is unjust and there are compelling reasons not to allow that remedy. Turley, 149 Wn.2d at 401. Where fundamental principles of due process are at stake, the terms of the plea agreement may be enforced, notwithstanding statutory language. Miller, 110 Wn.2d at 532. Defendant Isadore requests specific performance of his plea agreement. The State has not objected to the defendant’s chosen remedy and in oral argument could not assert any reasons why specific performance would be unjust in this case. We therefore grant the defendant’s personal restraint petition. He is being restrained pursuant to an invalid plea. We order that the amended sentence be stricken and the original sentence enforced. Alexander, C.J., and Johnson, Madsen, Sanders, Bridge, Chambers, Owens, and Fairhurst, JJ., concur. “The court shall allow a defendant to withdraw the defendant’s plea of guilty whenever it appears that the withdrawal is necessary to correct a manifest injustice.” CrR 4.2(f). Acevedo, 137 Wn.2d at 204-05 (Johnson, J., concurring) (while community placement is a direct consequence, there was no manifest error because Acevedo was told orally by the court of the community placement so the guilty plea was knowing and voluntary); id. at 206-07 (Alexander, J., dissenting) (community placement is a direct consequence and it is unlikely that Acevedo will be deported so he should be allowed to withdraw his plea).

Neill, J. Plaintiffs bring suit against their former employer, Grays Harbor Chair & Mfg. Company, on a pension plan contract between their employer and Continental Assurance Company. The trial court awarded judgments against the employer and the insurance company in varying amounts based upon the present value of pensions payable at age 65. The employer and company appeal. Two of the plaintiffs did not recover and they cross-appeal. For convenience, Grays Harbor Chair & Mfg. Company will be referred to as the employer and Continental Assurance Company will be referred to as the company. In 1957, the employer contracted with the company for payment of pensions to qualified salaried employees. These pensions were based upon salaries and length of service. The employer agreed to deposit periodically with the company the sums of money which the company determined were required to fund the payments. The company agreed to purchase annuities for employees’ pensions as they became payable. The employer reserved the right, with the consent of the company, to modify or amend the contract without the consent of any employee, but the contract specifically provided that no such modification or amendment should deprive any employee of accrued benefits. The employer reserved the right to cease making deposits under the plan at any time. The employees did not participate in any negotiations between the employer and the company, nor were they parties to the contract. They did not contribute from their salaries to the fund. In December, 1957, the employer wrote a letter to each salaried employee announcing establishment of this pension plan for those who continued their employment until age 65, with other benefits in case of death, disability or termination of employment. A, booklet which outlined the benefits of the plan followed later. Thereafter, until 1962, the employer made regular deposits based upon the number of its employees, their ages, length of service, annual salary and life expectancy. In 1962, control of the employer was transferred by sale of its capital stock. Thereafter a number of employees, including plaintiffs, were terminated from employment under circumstances tantamount to discharge other than, for cause. No deposits have been made to the fund since 1962, but earlier deposits plus accumulated interest are sufficient to meet accrued obligations. At the time of the trial, there were about 10 employees still in the plan. Only one of them had then reached the normal retirement age of 65 and an annuity has since been purchased for him out of the fund. Defendants’ assignments of error raise two main issues. First, they claim that the trial court erred in finding the contract ambiguous and in resolving the ambiguity in favor of the discharged employees. Second, they claim the trial court erred in reducing the pensions to present value and awarding money judgments in those amounts. An understanding of the issues requires us to examine the contract in more detail. Several terms have been defined by the parties as follows: (c) Credited Service — The years of a Participant’s employment, but not to include the first two years of service or any service prior to age 25 male and female, or service prior to age 30 for female Participants hired after December 1, 195:7. Credited service shall be computed to the nearest one-twelfth (l/12th) of a year, subject to a maximum of 30 years. (d) Participant — Any salaried Employee who meets the eligibility requirements set forth in this Contract. Eligibility requirements are described in the following language: 6. Eligibility Requirements: On and after the Effective Date, each full-time salaried Employee of the Employer who was hired prior to his 50th birthday shall be considered a Participant upon completion of two years service and at tainment of age 25, except that females hired subsequent to the Effective Date will become Participants only upon completion of two years service and attainment of age 30. Any Employee not actively at work on the date he would otherwise become eligible will be made eligible from the Anniversary Date nearest his return to active work. The provision which causes our principal concern follows: 3. Benefits on Termination of Employment : All rights to all benefits under the Contract will cease upon a Participant’s termination of employment with the Employer prior to retirement except for the following benefits. If the employment of a Participant is terminated prior to retirement but after he has attained the age of 46 and has completed at least 10 years as a Participant under the Plan he shall be entitled to receive a Normal Annuity, commencing at age 65, or upon receipt of application if later, provided that application therefor is made to the Employer by written request signed subsequent to his attainment of age 64% and prior to age 70. Said Normal Annuity shall be computed as a percentage of his Normal Retirement Benefit, based on credited years of service to the date of termination of employment, as follows: Notwithstanding the foregoing provision, if any Participant’s termination of employment is the result of a dismissal because of proven dishonesty, proven disloyalty, or a crime involving moral turpitude, no benefits will be payable under the Contract, provided, however, that determinations pursuant to this paragraph shall be made by the Employer on a uniform, equitable and non-discriminatory basis. (Italics ours.) Plaintiffs claim they would be entitled to pensions by virtue of this latter section. The employer and the company contend that as the plan became effective December 31, 1957, and these employees terminated in 1962 and 1963, it is impossible for them to have completed “at least 10 years as a Participant -under the Plan” and they are not entitled to pensions. The plaintiffs contend that the contract is ambiguous and that the parties intended to confer benefits upon any employee meeting other requirements and having 10 years of employment. The trial court agreed and concluded that an employee acquired a vested right to a pension, not when the plan had been effective for 10 years, but 10 years after employment commenced and other eligibility requirements were met. We have held that a pension granted to a public employee is not a gratuity, but is deferred compensation for services rendered and that the obligation of a public employer to pay a pension when the employee has fulfilled the prescribed conditions is contractual in nature. Bakenhus v. Seattle, 48 Wn.2d 695, 296 P.2d 536 (1956). This principle has been extended to private pension plans established by collective bargaining agreements. Dorward v. ILWU-PMA Pension Plan, 75 Wn.2d 478, 452 P.2d 258 (1969). We here recognize the application of this principle to voluntary, noncontributory (employer financed) pension plans. The cases now generally hold that where an employer has a pension plan and the employees know of it, continued employment constitutes consideration for the promise to pay the pension. See Annot., 42 A.L.R.2d 461 (1955), and cases cited. Also see 56 C.J.S. Master and Servant § 169, at 828 (1948). A retirement pension is pay withheld to induce continued faithful service. It amounts to delayed compensation for services rendered. David v. Veitscher Magnesitwerke Actien Gesellschaft, 348 Pa. 335, 35 A.2d 346, 349 (1944); Ball v. Victor Adding Mach. Co., 236 F.2d 170, 174 (5th Cir. 1956); Siegel v. First Pennsylvania Banking & Trust Co., 201 F. Supp. 664 (E.D. Pa. 1961); Parsley v. Wyoming Automotive Co., 395 P.2d 291 (Wyo. 1964). As the court said in Ball, at page 173: And the idea that a Pension Trust expressly approved, as was this one, by the Internal Revenue Service as a plan qualified under Section 165, 1939 Code, 26 U.S.C.A. § 165; 1954 Code, § 401, 26 U.S.C.A. §§ 401, 402, is a mere gratuity or charitable enterprise beyond even the barest scrutiny by its sole beneficiaries (the employees) is com pletely out of keeping with the philosophy and purpose of such plans as the means of paying additional compensation to the covered employees in a way to afford substantial and immediate tax advantages to the Employer and substantial tax and monetary benefits to the employees. And again in Cantor v. Berkshire Life Ins. Co., 171 Ohio St. 405, 410, 171 N.E.2d 518 (1960), the court said: A retirement program has become a basic part of an employee’s remuneration even as his wages are a part thereof, and a consideration flows to the employer as well as to the employee through such a program. Clearly, under our present economic system, an employer cannot offer a retirement system as an inducement to employment and, after an employee has accepted employment under such circumstances, withdraw or terminate the program after an employee has complied with all the conditions entitling him to retirement rights thereunder. Therefore, whether a retirement plan is contributory or noncontributory and even though the employer has reserved the right to amend or terminate the plan, once an employee, who has accepted employment under such plan, has complied with all the conditions entitling him to participate in such plan, his rights become vested and the employer cannot divest the employee of his rights thereunder. We have then, in the instant case, not only a contract between the employer and the company, but an implied contract between employer and employee. Where a private pension plan creates a contractual obligation between employer and employee, the rights and obligations of the parties must be measured by the terms of the contract under the ordinary rules of contractual construction. The rights of the employee are limited by the terms of that contract. See, Rights and liabilities as between employer and employee with respect to general pension or retirement plan, Annot., 42 A.L.R.2d 461, 472 (1955); Renshaw v. United States Pipe & Foundry Co., 30 N.J. 458, 153 A.2d 673 (1959); Schneider v. McKesson & Robbins, Inc., 254 F.2d 827 (2d Cir. 1958). In Boeing Airplane Co. v. Firemen’s Fund Indem. Co., 44 Wn.2d 488, 496, 268 P.2d 654, 45 A.L.R 984 (1954), we reiterated a basic rule of contract construction: Where the terms of a contract taken as a whole are plain and unambiguous, the meaning of the contract is to be deduced from its language alone, and it is unnecessary for a court to resort to any aids to construction. To the same effect see Ross v. Harding, 64 Wn.2d 231, 391 P.2d 526 (1964); Schauerman v. Haag, 68 Wn.2d 868, 416 P.2d 88 (1966); Pepper v. Evanson, 70 Wn.2d 309, 422 P.2d 817 (1967). A contract is not ambiguous when a reading of the contract as a whole leads to only one meaning. Where contractual language is unambiguous courts will not read ambiguity into the contract. Hering v. St. Paul-Mercury Indem. Co., 50 Wn.2d 321, 311 P.2d 673 (1957); Felton v. Menan Starch Co., 66 Wn.2d 792, 405 P.2d 585 (1965). Our reading of this pension plan makes it clear to us that this contract is not ambiguous. If plaintiffs are eligible for deferred pensions, they must qualify under part 3 of the contract, “Benefits on Termination of Employment.” In order to qualify under this section an employee must have “completed at least 10 years as a Participant under the Plan.” A participant is defined as “Any salaried Employee who meets the eligibility requirements set forth in this Contract.” The eligibility requirements, insofar as relevant, are as follows: On and after the Effective Date, each full-time salaried Employee of the Employer who was hired prior to his 50th birthday shall be considered a Participant upon completion of two years service and attainment of age 25 (Italics ours.) When reading these provisions together, they are susceptible of only one possible meaning: In order to receive benefits for early termination, an employee must have been a participant in the plan for 10 years; one can become a participant only on or after the effective date of the plan (December 1, 1957), depending upon satisfaction of the age and service requirements. However, even if it is conceded, arguendo, that the contract is ambiguous, the trial court misapplied the rules of construction. Where the language of the parties is ambiguous, the principal goal of construction is to search out the intent of the parties. This is done by viewing the contract as a whole in light of the circumstances and conduct surrounding the making of the contract. Schauerman v. Haag, supra. Subsequent acts of the parties may also be considered in determining the intent of the parties. Hastings v. Continental Food Sales, Inc., 60 Wn.2d 820, 376 P.2d 436 (1962). Each employee was furnished with a pamphlet explaining the pension plan. This booklet clearly states the conditions under which a terminated employee may be entitled to a deferred (to age 65) pension. These conditions are four in number, the fourth and concluding condition being: “Your termination date is November 30, 1967, or later.” The pamphlet clearly states that the effective date of the plan is December 1, 1957; so this condition of eligibility for pension rights is fully consistent with the other provisions requiring 10 years of employment after the plan is operative. There is no evidence in the record of an intent to grant retirement benefits under any circumstances before November 30, 1967. To the contrary, the pension plan contract between the employer and the company clearly states “If the employment of a participant is terminated prior to retirement but after he has attained the age of 46 and has completed 10 years as a Participant under the Plan he shall be entitled to receive a Normal Annuity, commencing at age 65.” (Italics ours.) Rather than purporting to follow evidence of the intent of the parties, the trial court apparently relied upon the rule of construction that an ambiguous contract is to be construed against the party preparing it. If a contract is equally susceptible of two or more constructions, we agree that it should be construed against the party using the language. Such an approach provides an easy, albeit somewhat arbitrary, method of reaching what would otherwise be extremely difficult decisions. The rule can be rationalized by saying that the party formulating the language is to blame for the difficulty in interpreting it, and that he could have avoided the problem by more careful draftsmanship. However, when all the evidence of the intention of the parties leads to one meaning of the contract, then it is neither just nor does it make sense to follow this rule of construction by rote to reach an opposite conclusion. The rule should not be applied until called into play by an ambiguity. As we have stated, this pension plan is not ambiguous. Plaintiffs attempt to bolster their position by reference in their brief to equitable estoppel. One of the prerequisites to equitable estoppel is “an admission, statement, or act inconsistent with the claim afterwards asserted.” See Dorward v. ILWU-PMA Pension Plan, supra. In Dorward, an employee was first certified with a certain number of years’ service, and then the pension plan trustees later attempted to reduce the accredited years’ service after the employee reached retirement age. We held the trustees were estopped from reducing the accredited service. In the present case, we find no admission, statement, act or promise, implied or otherwise, which is inconsistent with defendants’ present contention that they have a right to terminate employees and that any employee terminated before November 30, 1967, is not entitled to a pension. There is no evidence of any such admission, statement or act in the trial court’s findings of fact, the trial court’s oral opinion, the briefs of the parties, or the pamphlet distributed to the employees. Under these circumstances, the doctrine of equitable estoppel cannot be applied. In summary, the conclusion that plaintiffs are entitled to benefits by this plan can only be reached through a questionable determination that this contract is ambiguous, followed by an equally questionable construction of the contract, and bolstered by an erroneous application of equitable estoppel. Pension plan contracts, by their very nature, are complex instruments, replete with myriad definitions and classifications; but complexity is not ambiguity. The •contract before us .contains none of the inconsistencies or anomalies generally associated with determinations of ambiguity. It is important to note that the pension contract provides that upon termination of the plan (it being a voluntary plan terminable at the will of the employer), all moneys held by the insurance company shall be distributed for the benefit of employees. Under no circumstances will these moneys revert to the employer. The trial court expressly found that the pension plan contract has not been terminated; so the distribution plan is not operative. We point this out only for the purpose of illustrating that this contest is not between terminated employees and an employer who will receive the funds if plaintiffs do not, but that the real issue is whether the funds now in the hands of the insurance company should go to these plaintiffs or to those employees of Grays Harbor Chair who are still participants in the plan. It may seem unfair to declare a pension plan to be compensation and then deny an employee who is not at fault the fruits of this compensation. But the extent of this compensation is limited by the terms of the contract, and many cases have held that an employee who is not at fault but who does not fall within the contractual requirements may not recover pension benefits. See the cases collected in 42 A.L.R.2d 461, 475-80 (1955). While these results may seem inequitable in a particular case, the alternative would be to hold that the adoption of a pension plan of any type creates an immediate enforceable monetary right in employees, irrespective of the terms of the contract. Such a course would severely limit the adoption of purely voluntary pension plans not required by statute or collective bargaining agreement; and would further benefit terminated employees at the expense of continuing and future employees. In view of our determination that plaintiffs are not entitled to pensions under the terms of the plan, we need not discuss the issue of the conversion of the annuities provided for under the contract to current cash payments. The denial of recovery to cross-appellants Plesha and Walker (employees determined by the trial court to be ineligible for benefits) is correct. The record establishes that these two plaintiffs fail to meet the age and tenure requirements of the plan. The judgment is reversed as to all plaintiffs except Plesha and Walker, as to whom the judgment is affirmed. Hunter, C. J., Finley, Weaver, Hamilton, Hale, and McGovern, JJ., concur. In employer’s letter to the Internal Revenue Service wherein tax deduction for contributions to the plan was sought, it is stated: Distribution upon Termination — Paid-up annuities beginning not earlier than age 65 as follows: a. First priority equally to participants over 65; b. Second priority equally to previously vested rights; and then c. Pro-rata distribution of accrued but previously invested [sic] [unvested] rights. This type of pension plan is commonly known as a deposit administration fund. The insurance company merely acts as custodian of the money contributed by the employer and annually advises the employer as to the amount of money which should be deposited to keep the fund actuarially sound, based on the then current status of participating employees. No specific allocation is made to individual employees. No annuity is purchased for an employee until the man actually retires, at which time sufficient moneys are withdrawn from the fund to purchase an annuity for the retiree. The terms of the annuity are a matter between the insurance company and the retiree based on the option and election open to the employee at the time under the provisions of the pension plan.

Ringold, J. The plaintiff, Vernon Coggle, appeals an order granting the motion for summary judgment of Dr. Lawrence W. Snow, the defendant in a medical malpractice action. We reverse and remand for trial. In May 1983, Coggle was treated for low back pain by Dr. Snow, an orthopedic surgeon, at Valley General Hospital (now Valley Medical Center). A Methadone "pain cocktail" was administered to the plaintiff. Several days later Coggle developed respiratory symptoms diagnosed as adult respiratory distress syndrome (ARDS). Dr. Snow then called in Dr. Donald Mitchell, an internist, to treat Coggle's respiratory problem. In November 1985, Coggle was again admitted to Valley General Hospital for treatment of an ankle fracture. Several times during his treatment, when asked whether he had any known allergies, Coggle responded in the negative. Dr. Snow performed surgery on Coggle's ankle on November 16, 1985. Because of the plaintiff's continuing complaints of pain, Dr. Snow again authorized the administration of a "pain cocktail." Several days later Coggle developed respiratory symptoms subsequently diagnosed as ARDS and was treated by Dr. Mitchell. In July 1986, Coggle commenced this action for negligence, lack of informed consent, and strict liability, seeking damages for pain, medical expenses, and loss of earnings attributed to the administration of the "pain cocktail" in November 1985. On August 12, 1988, the defendant filed a motion for summary judgment noted for hearing August 26, 1989. In support of the motion Snow filed his own affidavit and portions of Dr. Mitchell's deposition. Snow stated: (1) Coggle, when asked by medical staff whether he had any known allergies, stated that he did not; (2) as an orthopedic surgeon Snow was neither trained nor experienced in the diagnosis and treatment of respiratory disorders and he thus relied on Dr. Mitchell's expertise in both instances in treating Coggle's respiratory illness; (3) Snow is not required, according to the applicable standard of care, to advise a patient of the nature of prescribed medications when the patient has denied having allergies; (4) Snow had no reason to believe in 1985 that administering the pain cocktail would cause another ARDS episode; and (5) he had informed Coggle of all material risks involved in the procedure. Referring to the 1983 episode, Dr. Mitchell stated in his deposition: "Although I raise the possibility of reaction to the drugs, the drugs that he had been given were not ones that were at least commonly associated with this", concluding that "more likely than not," viral pneumonitis had caused the 1983 ARDS episode. He also stated that he reached a "tentative conclusion" after the 1985 episode that the ARDS was caused by the pain cocktail. On August 19,1988, Harvey Grad filed a notice of association as counsel and a motion for continuance pursuant to CR 56(f). In support of the motion for continuance, counsel stated: 1. Declarant. I am Harvey Grad, attorney for plaintiff in this motion. Matt L. Alexander, plaintiff's attorney, who is in the process of retirement and has moved from his downtown office, has asked that I substitute as plaintiff's counsel. I met with Mr. Alexander on 16 August 1988, and on that same date, called plaintiff's physician. My declaration is based upon that which I learned that date. 2. Unavailability of Affidavits. Mr. Alexander has prepared and transmitted to Mr. Coggle, plaintiff, a reply declaration for his execution and return for filing, in response to defendant's motion. Mr. Coggle was also seen by a Tacoma physician, whose declaration is intended to rebut that of defendant and the deposition testimony of Doctor Mitchell upon his earlier finding that the defendant breached the applicable standard of care for the administration of medication, and that such breach was the proximate cause of injuries of which plaintiff has complained. However, it was not possible to obtain his affidavit within the time required by LR 56.[ ] 3. Continuance. The current motion date should be continued an additional thirty (30) to forty-five (45) days, because plaintiff "cannot, for reasons stated, present by affidavit facts essential to justify his opposition . . Civil Rule 56(f) and the court should therefore deny defendant's motion and continue this case for that reason. The trial court denied the motion for continuance and granted Snow's motion for summary judgment on August 26, 1988. Coggle then filed a motion for reconsideration, supported by his own declaration and that of a Tacoma pulmonary specialist, Dr. James Billingsley. Billingsley stated that he examined Coggle in March 1988, and reviewed Valley General Hospital's records of Coggle's treatment in 1983 and 1985. He stated that in 1983 "Doctor Mitchell noted the association between the onset of [ARDS] and the methadone prescribed by Doctor Snow, i.e., the 'pain cocktail'." Billingsley also stated: Doctor Snow knew, or should have known of the prior adverse reaction to this medication. He should have checked the records from the prior admission to establish no adverse consequence from medications or treatment previously administered. Under the circumstances, Doctor Snow breached the standard of care required of a reasonably prudent practitioner possessing the degree of skill, care and learning possessed by other members of the same profession in this state. Billingsley stated further that Coggle's injuries were a result of the administration of the pain cocktail which "posed a known risk of injury." Coggle's declaration submitted in support of the motion for reconsideration stated that he does not have any allergies but that, if he had been specifically asked regarding adverse drug reactions, he would have informed Snow and other hospital personnel of the effect of the pain cocktail administered in 1983. Coggle further stated that he was advised by Dr. Mitchell in 1983 that his respiratory problems at that time were probably due to an allergic reaction to the pain cocktail. He would not have requested a pain cocktail or accepted such medication had he been aware of its nature. The trial court denied Coggle's motion for reconsideration. Coggle appeals the summary judgment dismissing his action and the denial of his motions for a continuance and for reconsideration. We conclude that without consideration of the declarations of Dr. Billingsley and Coggle there was not a sufficient showing to establish a genuine issue of material fact, necessary to survive the summary judgment motion. We hold, however, that the trial court erred in denying the motion for a continuance and for reconsideration. Judicial Discretion The ruling on the motions for a continuance and for reconsideration is within the discretion of the trial court and is reversible by an appellate court only for a manifest abuse of discretion. Turner v. Kohler, 54 Wn. App. 688, 693, 775 P.2d 474 (1989); Perry v. Hamilton, 51 Wn. App. 936, 938, 756 P.2d 150 (1988). The rule is simply stated, but the standard by which to determine whether a trial court has properly exercised its discretion is in disarray in this state. Thus it is necessary to review this standard. Ruggero J. Aldisert, in The Judicial Process (1976), at page 742, states: Bouvier's Dictionary defines discretion as "that part of the judicial function which decides questions arising in the trial of a cause, according to the particular circumstances of each case, and as to which the judgment of the court is uncontrolled by fixed rules of law. The power exercised by courts to determine questions to which no strict rule of law is applicable but which, from their nature, and the circumstances of the case, are controlled by the personal judgment of the court.” Hart and Sacks define certain other types of discretion as "the power to choose between two or more courses of action each of which is thought of as permissible". . . . Knowing simply that one is invested with discretion does not tell much. The crucial inquiry, necessarily, is the extent of the discretionary power conferred. Thus, while the recent commentators have outlined sophisticated nuances, it remains for the courts to calibrate its full measure. Justice Benjamin Cardozo in his series of lectures collected in The Nature of the Judicial Process 141 (1921), reflected on the nature of judicial discretion: The judge, even when he is free, is still not wholly free. He is not to innovate at pleasure. He is not a knight-errant roaming at will in pursuit of his own ideal of beauty or of goodness. He is to draw his inspiration from consecrated principles. He is not to yield to spasmodic sentiment, to vague and unregulated benevolence. He is to exercise a discretion informed by tradition, methodized by analogy, disciplined by system, and subordinated to "the primordial necessity of order in the social life." Wide enough in all conscience is the field of discretion that remains. The precise meaning of discretion is affected by the reasons and the purposes for which the decisionmaker is to exercise his or her discretion. Discretion may mean that the decisionmaker is not bound by standards; on the other hand, it may mean simply that the decisionmaker must exercise judgment in applying certain standards or that he or she has final authority in the matter, without review by other authority. See Dworkin, The Model of Rules, 35 U. Chi. L. Rev. 14, 32-34 (1967). Another scholarly commentator has stated that the central idea of discretion is choice: the court has discretion in the sense that there are no "officially wrong" answers to the questions posed. Rosenberg, Judicial Discretion of the Trial Court, Viewed From Above, 22 Syracuse L. Rev. 635, 636-37 (1971). In this context, we turn to Washington case law concerning the exercise of judicial discretion. In State ex rel. Ross v. Superior Court, 132 Wash. 102, 107, 231 P. 453 (1924), the court, in considering a motion for change of venue, stated that "discretion in this regard is never arbitrary. It must, like discretion in other matters, be based on reason." The court in State ex rel. Beffa v. Superior Court, 3 Wn.2d 184, 100 P.2d 6 (1940) held that a writ of mandamus will not issue to control an exercise of judicial discretion absent a manifest abuse of discretion. The court further held that "it can safely be said that abuse of judicial discretion is not shown unless the discretion has been exercised upon grounds, or to an extent, clearly untenable or manifestly unreasonable." Beffa, at 190. Accord, State ex rel. Nielsen v. Superior Court, 7 Wn.2d 562, 579, 110 P.2d 645, 115 P.2d 142 (1941); Holm v. Holm, 27 Wn.2d 456, 463, 178 P.2d 725 (1947). This standard, like that articulated by the above quoted commentators, requires decisionmaking founded upon principle and reason. An imprudent standard for the exercise of judicial discretion seems to have been introduced in Rehak v. Rehak, 1 Wn. App. 963, 465 P.2d 687 (1970). A husband appealed from a divorce decree, arguing that the award of property to the wife was an abuse of discretion by the trial court. The court first noted that ”[s]ome apparent reason must be present for the action of the court to constitute a proper exercise of discretion in this type of case." Rehak, at 965. The court concluded by adopting a test from Delno v. Market St. Ry., 124 F.2d 965, 967 (9th Cir. 1942), that discretion is abused: when the judicial action is arbitrary, fanciful or unreasonable, which is another way of saying that discretion is abused only where no reasonable man would take the view adopted by the trial court. If reasonable men could differ as to the propriety of the action taken by the trial court, then it cannot be said that the trial court abused its discretion. (Italics ours.) Rehak, at 965. Rehak introduced into Washington case law a purported standard of abuse of discretion which cannot be applied. Instead of examining the reasons for the decision, this standard focuses on the reasonableness of the decisionmaker. But to say that an abuse of discretion exists when "no reasonable man, woman or judge" would have taken the view adopted by the trial court is not accurate. It cannot justly be said that every trial judge reversed by the appellate court or Supreme Court for an abuse of discretion is less reasonable than the reversing judges. "An experienced and reasonable trial judge does not suddenly become 'unreasonable' on a particular day." State v. Creekmore, 55 Wn. App. 852, 875, 783 P.2d 1068 (1989) (Forrest, J., concurring). Strict application of such a standard would mean that an appellate court would never reverse without a hearing to determine the general reasonableness of the judge. In State ex rel. Carroll v. Junker, 79 Wn.2d 12, 482 P.2d 775 (1971), the Supreme Court sought to temper the "reasonable man” standard: Judicial discretion is a composite of many things, among which are conclusions drawn from objective criteria; it means a sound judgment exercised with regard to what is right under the circumstances and without doing so arbitrarily or capriciously .... Where the decision or order of the trial court is a matter of discretion, it will not be disturbed on review except on a clear showing of abuse of discretion, that is, discretion manifestly unreasonable, or exercised on untenable grounds, or for untenable reasons. Junker, at 26. Nevertheless, numerous decisions since 1971 have persisted in applying the Delno-Rehak standard, sometimes juxtaposing it with the Junker standard. E.g., Singleton v. Frost, 108 Wn.2d 723, 730, 742 P.2d 1224 (1987). We take this occasion to disapprove the Delno-Rehak standard. The proper standard is whether discretion is exercised on untenable grounds or for untenable reasons, considering the purposes of the trial court's discretion. With these principles in mind, we consider whether the trial court properly exercised its discretion in this case. CR 56(f) states that where affidavits of the party opposing the motion for summary judgment show reasons why the party cannot present facts justifying its opposition, the court may refuse the motion for summary judgment or order a continuance in order to obtain affidavits or the depositions. Where a party knows of the existence of a material witness and shows good reason why the witness' affidavit cannot be obtained in time for the summary judgment proceeding, the court has a duty to give the party a reasonable opportunity to complete the record before ruling on the case. However, the trial court may deny a motion for a continuance when (1) the moving party does not offer a good reason for the delay in obtaining the evidence; (2) the moving party does not state what evidence would be established through the additional discovery; or (3) the evidence sought will not raise a genuine issue of fact. Turner v. Kohler, supra at 693. In considering the application of CR 56(f), we note that the trend of modern law is to interpret court rules and statutes to allow decision on the merits of the case. Weeks v. Chief of Wash. State Patrol, 96 Wn.2d 893, 895-96, 639 P.2d 732 (1982). In addition, the Superior Court Civil Rules are to be construed to secure the just, speedy, and inexpensive determination of every action. CR 1. The record reveals the reason for Coggle's inability to produce the declarations in time for the summary judgment hearing. Coggle's new counsel filed the notice of association of counsel 1 week after Snow filed the motion for summary judgment. He had not had time to follow through on work begun by previous counsel. Coggle fulfilled the other criteria for a continuance by identifying the evidence he sought and explaining that the declarations would rebut the defense expert testimony. Turner, at 693. The primary consideration in the trial court's decision on the motion for a continuance should have been justice. The client, Coggle, after obtaining new counsel, should not be penalized for the apparently dilatory conduct of his first attorney. See Simonson v. Fendell, 34 Wn. App. 324, 330-32, 662 P.2d 54 (1983), rev'd on other grounds, 101 Wn.2d 88, 675 P.2d 1218 (1984). The court should have viewed the motions in the context of the new legal representation. We fail to see how justice is served by a draconian application of time limitations here. The case had been filed 2 years earlier. Little discovery had been pursued. The process could have been speeded by the court after a short continuance and the consideration of Coggle's materials in response to the motion for summary judgment. Snow has not argued that he would have suffered prejudice if the court had granted a continuance, nor do we perceive any prejudice. We cannot discern a tenable ground or reason for the trial court's decision. We hold that the trial court improperly exercised its discretion in denying the motion for a continuance. It is unclear from the record whether the court considered the merits of the materials submitted by Coggle in support of his motion for reconsideration. If the court, after failing to grant the continuance, also refused to evaluate the declarations of Coggle and Dr. Billingsley and their impact on the motion for summary judgment, then this was an abuse of discretion flowing from the court's initial denial of the motion for a continuance. In the alternative, if the court considered the declarations and concluded they did not raise an issue of material fact, then we hold, in accord with the following analysis, that the court erred as a matter of law and we reverse on that basis. Summary Judgment The issue is whether the material presented by the plaintiff in support of his motion for reconsideration created a genuine issue of material fact. In reviewing an order of summary judgment, the appellate court engages in the same inquiry as thenl trial court. Hontz v. State, 105 Wn.2d 302, 311, 714 P.2d 1176 (1986). Under CR 56(c), a motion for summary judgment is granted only: if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. "A material fact is one upon which the outcome of the litigation depends, in whole or in part." Barrie v. Hosts of Am., Inc., 94 Wn.2d 640, 642, 618 P.2d 96 (1980). The party moving for summary judgment has the burden of showing that there is no issue of material fact; the court must resolve all reasonable inferences from the evidence against the moving party and will grant the motion only if reasonable people could reach but one conclusion. Detweiler v. J.C. Penney Cas. Ins. Co., 110 Wn.2d 99, 108, 751 P.2d 282 (1988). Where a motion for summary judgment is properly supported, the burden shifts to the party opposing the motion to set forth specific facts showing there is a genuine issue for trial. CR 56(e); Graves v. P.J. Taggares Co., 94 Wn.2d 298, 302, 616 P.2d 1223 (1980). The plaintiff in a medical negligence action must produce evidence showing injury caused by the health care provider's failure to exercise that degree of care, skill, and learning expected of a reasonably prudent practitioner in the state of Washington RCW 7.70.040; McKee v. American Home Prods. Corp., 113 Wn.2d 701, 782 P.2d 1045 (1989). The plaintiff generally must offer proof of these elements through the testimony of expert medical witnesses. Harris v. Groth, 99 Wn.2d 438, 449, 663 P.2d 113 (1983). A. Evidence Before Dismissal. Snow met his initial burden on summary judgment by establishing that his actions conformed to the applicable standard of care. We reject Coggle's contention that Snow's affidavit is insufficient under Hash v. Children's Orthopedic Hosp. & Med. Ctr., 110 Wn.2d 912, 757 P.2d 507 (1988) and Nicholson v. Deal, 52 Wn. App. 814, 764 P.2d 1007 (1988). We have elsewhere distinguished those cases as involving "[virtually] res ipsa loquitur" situations requiring further factual explanation from the defendant physician. Turner v. Kohler, supra at 692 n.2. Furthermore, Snow met his burden by pointing out to the trial court the absence of evidence to support the nonmoving party's case. Young v. Key Pharmaceuticals, Inc., 112 Wn.2d 216, 225 n.1, 770 P.2d 182 (1989) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 325, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). B. Coggle's Responsive Declarations. The remaining question is whether Coggle's response to the motion for summary judgment raised a genuine issue for trial. Snow contends that Dr. Billingsley's declaration is insufficient to raise a genuine issue of material fact because he does not state that Dr. Snow deviated from the accepted standard of medical care for an orthopedic surgeon when he relied upon Dr. Mitchell's belief that the 1983 ARDS episode was caused by a virus. We note that the courts indulge a certain degree of leniency in reviewing the affidavits of the nonmoving party. PUD 1 v. WPPSS, 104 Wn.2d 353, 361, 705 P.2d 1195 (1985). Upon review of the entire declaration, we believe that, while not a model of legal precision, Dr. Billingsley's declaration successfully raises an issue of fact as to Snow's compliance with the standard of care and causation. Dr. Billingsley stated that in 1983 Dr. Mitchell "noted" the possible association between the prior cocktail and the ARDS. It is unclear from this declaration whether Billings-ley means that the hospital record contains written notations by Mitchell of the possible association between ARDS and the medication or merely refers to Mitchell's deposition. However, Dr. Billingsley also clearly stated (1) Dr. Snow knew or should have known of the prior adverse reactions to the medication by referring to the medical records, and (2) Dr. Snow breached the "standard of care required of a reasonably prudent practitioner ... in this State" in administering the pain cocktail. Considering the facts and all reasonable inferences from the facts in the light most favorable to Coggle, we conclude these statements amount to an assertion that Snow deviated from the accepted standard of medical care for an orthopedic surgeon. In conjunction with assertions in Dr. Mitchell's deposition and Coggle's own declaration that the possibility of a drug reaction was raised in 1983, Dr. Billingsley's declaration is sufficient to raise material issues of fact as to whether Dr. Snow breached the standard of care in treating Coggle. We also conclude that Coggle's response was sufficient to defeat the motion for summary judgment as to the informed consent claim. The elements of a cause of action under the informed consent doctrine are: (1) the physician failed to inform the patient of a material risk of the proposed course of treatment, (2) the patient consented to the proposed treatment without being aware of or fully informed of the material risks and alternatives, (3) a reasonable, prudent patient would not have consented to the treatment when informed of the material risks, and (4) the treatment caused injury to the patient. RCW 7.70.050; Crawford v. Wojnas, 51 Wn. App. 781, 783, 754 P.2d 1302 (1988). Dr. Billingsley stated in his declaration that (1) a "reasonable physician" would have attached significance to the association between the 1983 ARDS episode and the pain cocktail, (2) the medication posed a known risk of injury, (3) Coggle was not advised of the risk of an adverse reaction, (4) a reasonably prudent patient under these circumstances would not have consented to the treatment if informed of these facts, and (5) injury resulted from the administration of the medication. Coggle stated in his declaration that he would not have accepted a pain cocktail in 1985 because he had been told previously of his adverse reaction and that he was unaware of the nature of the medication until after the ARDS episode occurred. These declarations are sufficient to raise an issue of fact as to whether Coggle gave informed consent. Because Coggle raises no issue relating to the strict liability claim of his complaint, we deem that claim abandoned. Accordingly, we reverse and remand for trial on the claims of negligence and the absence of informed consent. Webster and Forrest, JJ., concur. Judge Solie M. Ringold is serving as a judge pro tempore of the Court of Appeals pursuant to RCW 2.06.150 and CAR 21(c). CR 56(f) states: "When Affidavits Are Unavailable. Should it appear from the affidavits of a party opposing the motion that he cannot, for reasons stated, present by affidavit facts essential to justify his opposition, the court may refuse the" application for judgment or may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had or may make such other order as is just." Former King County Local Rule 56(c)(1)(A) states in part: "The responding party must file and serve the response, including any cross-motion and all relevant materials on all parties and on the Civil Motions Coordinator at least seven (7) calendar days before the hearing." Because the trial court abused its discretion in denying the motion for a continuance, this case is distinguishable from recent cases which hold that on a motion for reconsideration the court cannot consider evidence that could have been discovered prior to the trial court's ruling. Adams v. Western Host, Inc., 55 Wn. App. 601, 608, 779 P.2d 281 (1989); Richter v. Trimberger, 50 Wn. App. 780, 785, 750 P.2d 1279 (1988). Vant Leven v. Kretzler, 56 Wn. App. 349, 783 P.2d 611 (1989), recently decided by this court, raised similar issues regarding motions for a continuance and reconsideration in a summary judgment case. That case is distinguishable. Kretzler did not involve newly hired counsel. Furthermore, the affidavit submitted in support of the motion for a continued opportunity did not adequately state what further evidence was sought. Finally, the physician's affidavit submitted in support of the motion for reconsideration did not raise a material issue of fact. Portions of the hospital record in the appellate record are illegible.

The opinion of the court was delivered by Dunbar, C. J. The Bennett-Hull Furniture Company is a corporation organized under the laws of the State of Washington, and for the last five years has been engaged in the furniture business in the city of Seattle. Since its organization H. J. Hull has been its president, and H.- F. Bennett its secretary and treasurer, and Alonzo Hull, vice-president, who was at the time of the commencement of this action one of its trustees. On March 13, 1894, Stephen P. Hull commenced an action on a note held by him, by serving summons and complaint on Bennett, as secretary and treasurer of the company, the service being made on the evening of March 13, 1894. The next morning Mr. Bennett notified the Boston National Bank, one of the appellants here, of the service of the papers in the Hull suit, and •on the same day, March 14, 1894, the bank commenced its action by a similar service. No appearance was made by the company in either of these actions. On April 3, 1894, the company was in default in the Stephen P. Hull suit, but by agreement between his attorneys and the attorneys of the bank, judgment was not entered until the next day, April 4, when the company became in default in the bank suit, and the complaints in both cases were placed on file, judgment entered and execution immediately issued and placed in the hands of the sheriff, and at once levied. By further agreement between the attorneys for Stephen P. Hull and the bank, the levy of the Hull execution was returned as a prior levy. Said levy was upon the entire stock and fixtures of the company, which constituted the entire available assets of the company, practically all the book accounts and bills receivable of any value having been previously assigned to the bank. On April 5, 1894, application -was made by one of the creditors of the company for the appointment of a receiver. On April 6, 1894, before said application was heard, Walter & Co., a creditor of the furniture company, demanded payment of its claim, represented by promissory notes some of which were not yet due, and to enable suit to be brought the furniture company took up said notes and gave a demand note instead, upon which suit was begun at once; and on the next day the furniture company filed its answer in said suit, confessing judgment, and judgment was entered and execution issued and levied immediately. On April 13, 1894, the application for a receiver was heard and granted, and the receiver at once commenced these actions to enjoin the appellants and defendants from further proceeding on such judgment and execution. He secured the decree that they had no right to the prior payment out of the property levied upon, to the end that the assets of the insolvent company might be equitably distributed by the receiver among all the creditors of said company. Decree was rendered in favor of the receiver in each case, from which this appeal is prosecuted. Before adverting to the facts in this case, we will notice the law propositions involved. The discussion, especially the oral argument, assumed a wide range, and counsel for appellants, with great earnestness, vigor and ability, assault what is frequently termed the “trust fund theory,” viz., the doctrine enunciated by many of the courts that the property of a corporation is a trust in the hands of the managers of the corporation for the benefit of its creditors, insisting that the theory is an illogical and unjust one, and that there should be no distinction made in this respect between the property of a corporation and the property of an individual. The respondent insists that this court has allied itself with the advocates of the trust fund theory by its decision and announcements in the case of Thompson v. Huron Lumber Co., 4 Wash. 600 (30 Pac. 741). We will not in this connection discuss the question whether the facts in that case were similar to those in the one at bar. We however held, on the legal proposition, that a voluntary preference by an insolvent corporation, was void; and that principle is the essentially distinguishing feature between the responsibilities and rights of a corporation and a private individual. A further investigation of the subject and of the authorities contents us with the rule announced in that case ; and we are satisfied that it can be amply sustained, not only by authority but by the clearest principles of right reasoning. To begin with, our statute law recognizes a distinction be tween the remedies of creditors as applied to their dealings with corporations, by providing for the appointment of receivers to take charge of the property of corporations under certain circumstances and conditions; and of course, after the receiver is appointed, the property is in the custody of the court, and the funds will be equitably distributed among the creditors. While the liberty of a private individual is in this respect in no wise circumscribed or controlled by law so far as statutory enactments are concerned, and his creditors are left to run a race of energy to obtain a vantage ground. The law having made this wise and equitable provision, it is the duty of courts of equity to see that the provision is carried out to some practical effect; and the reason for this distinction is manifestly a just one. The creditor of an individual debtor has more and better opportunities to keep himself advised concerning his debtor’s business and financial standing; there are no limitations on the debtor’s financial responsibilities. It matters not how little he may embark in the enterprise, he is individually responsible for the debts which he incurs, no matter how great the amount, and the creditor can safely disregard the particular business in which he is engaged and rely on his individual estate which he may know to be ample and which, with the exception of a small exemption, must respond to his debts. All this outside of the fact that an individual is liable to recuperate his fortunes in the future, after he has failed, and that there is hope of his paying his debts as long as he lives. But not so with a corporation. It is an artificial creature of the law. It is favored with certain limitations, and its responsibilities are only such as are made by statute. No matter what enormous debts it may incur, the stockholders are only individually responsible to their creditors for the amount of the capital stock which they own, and when the indebtedness incurred exceeds the amount for which the stockholders are responsible, then the unfortunate condition exists of a debt for which no one is responsible. If the venture of a corporation proves a successful one, the stockholders receive the benefit; if it prove unsuccessful, their liabilities, as we have before said, are limited. Hence, it behooves the law to throw some additional safeguards in the interest of creditors around a business thus conducted, for when the corporation fails and goes out of existence, all chance for compensation to the creditor is forever gone. When the corporation is dissolved, as it will be dissolved when it no longer is a profitable enterprise, the creditor finds himself struggling with a myth or a nonentity, and is therefore absolutely helpless. There is no sentiment, either, in cases of dissolved corporations, which prompts the stockholders in after years to pay off the debts which they incur in the prosecution of the business of the corporation, as there is in the case of individuals ; and altogether it seems to us that no violence is done in making this sharp distinction between the debts of an individnal and of á defaulting corporation. But, whatever may be said concerning the reason of this distinction, it has become so permanently engrafted in the law that it cannot now be disregarded. It was decided in Bartlett v. Drew, 57 N. Y. 587, that the assets of a corporation are a trust fund for the payment of its debts, and its creditors have a lien thereon and the right to priority of payment over its stockholders; that where the property of a corporation had been divided among its stockholders before all its debts had been paid, the judgment creditor, after the return of an execution unsatisfied, could maintain an action in the nature of a creditor’s bill against the stockholder to reach whatever was so paid; and that it was immaterial whether the stockholder got it by a fair agreement with his associates or by a wrongful act. In Hastings v. Drew, 76 N. Y. 9, the court said: “The proposition is well settled, that the stock and property of every corporation is to be regarded as a trust fund for the payment of its debts.” The appellants cite § 864 of 2 Morawet-z on Corporations, opposing this doctrine. That section seems to lay down the general proposition that a creditor of an insolvent corporation is entitled to pursue the ordinary legal and equit able remedies for the enforcement of his claims, unless he is restrained from doing so at the suit of the corporation or other creditors ; that he could not be prevented, except by-instituting proceedings for the purpose of securing a general distribution of the assets ; that an execution may undoubtedly be levied upon the property of a corporation, although it may be insolvent at the time, unless a receiver or assignee in bankruptcy of the company’s property has been appointed, or a restraining order has been issued in a proceeding to wind up the company. So far the text does not seem to affect the principle which we are discussing ; but the latter part of this section provides, or rather states the rule, • that the appointment of a receiver or assignee in bankruptcy, after an execution has been levied upon the property of a corporation, would clearly not affect the right of an execution creditor to be paid out of the property levied upon; and that, outside of the statutes affecting the law in such cases, the general rule is that, after the lien of an attachment has vested upon property of a corporation, it will not be divested by subsequent proceedings for winding up the company, unless the contrary be expressly provided. This proposition seems to be based upon one case, viz., In re Glen Iron Works, 20 Fed. 674, where it was held that the lien of judgment creditors of an insolvent corporation, who had levied writs of attachment execution under the laws of Pennsylvania, was not affected by the subsequent appointment of an assignee in bankruptcy of the corporation. We are not aware what the statute of Pennsylvania was under which this ruling was made, but the announcement here does not seem to reflect the sentiment of the author, Morawetz, on this interesting subject, for, after stating the law as announced in Ringo v. Biscoe, 13 Ark. 563, which is that, in the absence of a statutory prohibition, a corporation has the same power to make a preference amongst its creditors as an individual, the author, in § 803, in the following vigorous language, proceeds to give his views : “This doctrine, in the opinion of the writer, is wholly indefensible on principle. The capital provided for the security of the creditors of a corporation is a fund held for the benefit of all the creditors equally. That the unsecured creditors of a corporation are entitled to an equal distribution of the common security has often been recognized by the courts of equity in adjusting the rights of creditors among themselves and in relation to the company’s shareholders. After a corporation has become insolvent, and has ceased to carry on business, the rights of its creditors become fixed. If a corporation, whose assets are not sufficient to satisfy all of its creditors in full, can prefer certain creditors, leaving others unpaid, this must be by virtue of a power reserved by implication to the company and its agents. But this power cannot justly be included in the general powers of management which a corporation must necessarily possess over its property in order to carry on its business and further the purposes for which the company was formed. The purposes of a corporation are not furthered in any manner by giving it or its agents the power, after the company has become insolvent and has ceased to carry on business, and after its shareholders have lost their interests in the corporate estate, to prefer a portion of the creditors, according to interest or mere whim, and to pay their claims in full, leaving the others wholly without redress.” And, indeed, this doctrine does seem to be so entirely without reason as to be properly characterized as monstrous. When we come to think that this preferred distribution is made by the managers, who represent the stockholders who are in no way responsible for the debt, or at least that portion of it which is in excess of their liabilities, why should they, thus disinterested, be allowed to confer these benefits upon favorites to the exclusion of the rights of other honest creditors who have helped to furnish the means which con-constituted the very fund which is now being distributed to the exclusion of their interests? Certainly, it is but a just provision of law which holds that this fund, under such a condition, must be held intact as a trust fund for the equal benefit of all the creditors. The author above referred to, after asserting that the doctrine that the corporation may prefer certain creditors at the expense of others was first announced in Catlin v. Eagle Bank, 6 Conn. 233, proceeds to say that it is a doctrine which is at variance with the whole theory of the law concerning the rights of creditors of insolvent corporations, and that it is contrary to the plainest principles of justice; citing Robins v. Embry, 1 Smedes & M. Ch. 207; Richards v. New Hampshire Ins. Co., 43 N. H. 263; Hightower v. Mustian, 8 Ga. 506; Marr v. Bank of West Tennessee, 4 Coldw. 471. One of the earliest American cases sustaining the trust fund doctrine was Wood v. Dummer, 3 Mason, 308. The opinion was written by Judge Story, and among other things the learned judge says: “ It appears to me very clear, upon general principles as well as the legislative intention, that the capital stock of banks is to be deemed a pledge or trust fund for the payment of the debts contracted by the bank. * * * Credit is universally given to this fund by the public, as the only means of repayment. During the existence of the corporation it is the sole property of the corporation, and can be applied only according to its charter, that is, as a fund for payment of its debts upon the security of which it may discount and circulate notes. Why, otherwise, is any capiital stock required by our charters? If the stock may, the next day after it is paid in, be withdrawn by the stockholders, without payment of the debts of the corporation, why is its amount so studiously provided for, and its payment by the stockholders so diligently required? To me this point appears so plain upon principles of law, as well as common sense, that I cannot be brought into any doubt, that the charters of our banks make the capital stock a trust fund for the payment of all the debts of the corporation. * * On a dissolution of the corporation, the bill-holders and the stockholders have each equitable claims, but those of the bill-holders possess, as I conceive, a prior exclusive equity;” citing Vose v. Grant, 15 Mass. 505; Spear v. Grant, 16 Mass. 9; and some English cases, viz., Taylor v. Plumer, 3 Maule & S. 562, and Hill v. Simpson, 7 Ves. 152. In Taylor on Private Corporations, § 655, the author says: "There seems to be no longer the slightest question as to the firm establishment of this doctrine;” citing Sanger v. Upton, 91 U. S. 56, where the court says: “The capital stock of an incorporated company is a fund set apart for the payment of its debts. It is a substitute for the personal liability which subsists in private copartnerships. When debts are incurred, a contract arises with the creditors that it shall not be withdrawn or applied, otherwise than upon their demands, until such demands are satisfied. The creditors have a lien upon it in equity.” It would seem to us that, if this statement be true, that the creditors have a lien upon the property which comprises this fund, such lien would be absolutely worthless, if the stockholders through their managers were allowed to disburse the property through the medium of preferred creditors. Mr. Pomeroy, in his work on Equity Jurisprudence, 2dvol., § 1046, in discussing the question of trust funds, says courts regard property of private corporations, especially after their dissolution, as a trust fund in favor of creditors; citing Wood v. Dummer, supra, and many other cases. "These statements," says the author, "may be sufficiently accurate as strong modes of expressing the doctrine that such property is a fund sacredly set apart for the payment of partnership and corporation creditors, before it can be appropriated to the use of the individual partners or corpora-tors, and that the creditors have a lien upon it for their own security; but it is plain that no constructive trust can arise in favor of the creditors unless the partners or directors, through fraud or a breach of fiduciary duty, wrongfully appropriate the property, and acquire the legal title to it in their own names, and thus place it beyond the reach of creditors through ordinary legal means.” We cite this statement of Pomeroy for the reason that it is noticed and commented upon as opposing the trust fund doctrine, by the supreme court of the United States in Hollins v. Brierfield Coal & Iron Co., 150 U. S. 371 (14 Sup. Ct. 127); but while the learned author, Pomeroy, in dealing exclusively with names, says that the expression of trust in such cases is mostly metaphorical and that there is certainly nothing in the relation resembling a constructive trust, he has announced the doctrine that the creditors have a lien upon the funds for the payment of their debts, and so long as that fact exists the substance of the trust fund theory is maintained, no matter by what name it may be called, whether it be a trust fund, a constructive trust, or what not. Judge Story, in 2 Story’s Equity Jurisprudence, § 1252,, discussing this question, says : ‘ ‘ Perhaps to this same head of implied trusts upon presumed intention (although it might equally well be deemed to fall under the head of constructive trusts by operation of law), we may refer that class of cases where the stock and other property of private corporations is deemed a trust fund for the payment of the debts of the corporation ; so that the-creditors have a lien or right of priority of payment on it, in. preference to any of the stockholders in the corporation. Therefore if a corporation is dissolved, the contracts of such corporations are not thereby deemed extinguished, but they survive the dissolution of the corporation. * * * This, however, is a remedy which can be obtained in equity only,, for a court of common law is incapable of administering any just relief, since it has no power of bringing all the proper-parties before the court, or of ascertaining the full amount of the debts, the mode of contribution, the number of the-contributors, or the cross equities and liabilities which may be absolutely required for a proper adjustment of the rights-of all parties as well as of the creditors.” If the theory of the appellants were true, that the trustees-of the corporation could prefer its creditors, and if they can prefer them at all they can prefer them to the extent of all the funds of the corporation, the court of equity before-whom the case was brought for adj ustmént would sit helpless and with empty hands ; for it would be but a mockery of justice to bring the affairs of an insolvent corporation to a. court for adj ustment and distribution when all the substance of the corporation had been transferred to the pocket or till of the favored creditor. The supreme court of the United. States, in Curran v. State of Arkansas, 15 How. 304, in arguing this proposition and discussing the rights of the bank, says: "That the charter, followed by the deposit of the capital stock, amounted to an assurance, held out to the public by the state, that any one who should trust the bank might, rely on that capital for payment, we cannot doubt. And. when a third person acted on this assurance, and parted with his property on the faith of it, the transaction had all the elements of a binding contract, and the state could not withdraw the fund, or any part of it, without impairing its obligation.” And so it is with the corporations in this state. Parties who deal with these corporations under the law rely exclusively upon the funds of the corporation, recognizing the fact that they have no redress upon the private means of the stockholders ; and every principle of fair dealing demands, under such circumstances, that the fund upon which they rely and to which they extend their credit should be held as a sacred trust, and equitably and justly distributed by the court for their benefit. The same doctrine was announced in Sanger v. Upton, 91 U. S. 56. In Perry on Trusts, § 242, the author says: "Analogous to the gift or sale of the trust property by trustees is the right of dealing with its property by a corporation. A corporation holds its property in trust, first, to pay its creditors, and second, to distribute to its stockholders pro rata." In Wait on Insolvent Corporations, § 162, is found the following tersely expressed opinion: “The rule that the property of a corporation is a trust . fund to be applied for the equal benefit of all its creditors, is, as we have seen, constantly struggling for recognition in the cases. The funds of a corporation may be regarded as pledged exclusively for the payment of the debts of the corporation. The private property of the stockholders is not liable, nor is there at common law any individual responsibility on the part of the directors for corporate obligations. The corporate property is, then, the sole source to which the creditors must resort. The assets, as we have seen, might properly be considered as a special fund or property, set apart in law, in lieu of the private property of the corpora-tors, to which resort may be had for the payment of the debts of the corporation. The directors and managers of an insolvent corporation are regarded as trustees of the corporate funds, and for that reason should make a pro rata distribution among the various creditors, and hence it has been held that the trustees will not be permitted to prefer debts for which they are themselves personally liable. The struggle, both in the statutes and in the cases, has been to suppress preferences, which are justly regarded as a crying evil with which our insolvency and bankruptcy laws seem inadequate to cope. A court of equity, it may be observed, will interfere and appoint a receiver of a bank when the officers have been making preferential payments. While the existence of the right of a failing debtor to prefer one creditor to another in the distribution of his property has often been regretted, it is recognized both in courts of law and of equity. Cases may be cited upholding the right of a corporation, unrestricted by statute, to make a preferential assignment. The rule is quite firmly established. The practical working of the rule sustaining corporate preferences is monstrous. The unpreferred creditors have only a myth or a shadow left to which resort can be had for payment of their claims ; a soulless, fictitious, unsubstantial entity that can be neither seen nor found. The capital and assets of the corporation, the creditors’ trust fund, may, under this rule, be carved out and apportioned among á chosen few, usually the family connections or immediate friends of the officers making the preference. This rule of law is entitled to take precedence, among the many reckless absurdities to be met with in the cases affecting corporations, as being a manifest travesty upon natural justice.” This language, though seemingly turgid and vehement, is, notwithstanding, we think, justified by the injustice which is frequently effected by sustaining the rule criticised. In Rouse, Trustee, v. Merchants’ National Bank, 46 Ohio St. 493 (22 N. E. 293), it was held that a corporation, after it had become insolvent and ceased to prosecute the objects for which it was created, could not, by giving some of its creditors mortgages on the corporate property to secure antecedent debts, without other consideration, create valid preferences in their behalf over the other creditors, or over the general assignment thereafter made for the benefit of creditors. This case, it seems to us, is on a level with the case under consideration. It is true that the corporation in that instance was insolvent, but as we shall hereafter see, the corporation in the case at bar, as we view it, was practically insolvent, also. In the case above referred to the court said: “Itis obvious, that the corporate property cannot with propriety be said, to be owned by the corporation, in the sense of ownership as applied to property belonging to natural persons. The latter may without restriction acquire and dispose of property for any lawful purpose, while both the power of acquisition and disposition of the former are limited to special objects already mentioned. The corporate property is in reality a fund set apart to be used only in the attainment of the objects for which the corporation was created, and it cannot lawfully be diverted to any other purpose. As soon as acquired, it becomes impressed with the character of a trust fund for that purpose, and the shareholder or creditor may interpose to prevent its diversion from the objects of the incorporation, injurious to him.” To the same effect are a very large majority of the cases that have been adjudicated on this subject. It must be admitted that there are courts which have held the contrary doctrine, and the cases of Hollins v. Brierfield, etc., Co., supra, and Varnum v. Hart, 119 N. Y. 101 (23 N. E. 183), are notable instances; but with the most profound respect for the United States supreme court, we are unable to endorse the logic of their decision in the case last mentioned, and think that the result of such logic would be to destroy the efficacy of statutory law which is made distinguishing the collection of debts from private individuals from the collection of debts from insolvent corporations. It is insisted by the court in Hollins v. Brierfield, etc., Co., that the doctrine of trust funds is not to be disregarded, but that it only attaches after the corporation has actually become insolvent, and the property of the corporation has passed into the hands-of the court through its agent, the receiver. This, as we have said before, it seems to us would practically destroy the doctrine altogether, and render the appointment of a receiver for the purpose of justly distributing the estate of the insolvent corporation a useless task. And it is opposed to the rule announced by this court in Thompson v. Huron Lumber Co., supra, that “when a corporation has reached a point where its debts are equal to or greater than its property, and it cannot pay in the ordinary course, and its business is no longer profitable, it ought to be wound up and its assets distributed.” Discussing the case, then, upon the theory that an insolvent corporation has no right to prefer creditors, two questions are presented : (i) Was this corporation insolvent at the time these judgments were obtained ; and (2) was there collusion between the corporation and the judgment creditors. On the first proposition, we think the corporation was practically insolvent at the time these actions were commenced. It is true that, according to the showing made to the bank of the company’s business, the assets exceeded the liabilities ; but the book accounts and bills receivable were computed at their face value, and every business man knows that such a computation falls far short of representing the actual assets of a mercantile establishment; and the result in this instance abundantly proves the unreliability of the showing made. Hence the anxiety to maintain these preferences. We are also of the opinion that the testimony, construed by the light of all the circumstances, shows a collusion between the corporation and the judgment creditors. According to all the testimony the business had been a losing one for several months ; debts were pressing, which the company was unable to pay ; and it is noteworthy that the first action which was instituted was instituted by Stephen P. Hull, the father of H. J. Hull, who was the president of the corporation ; and that the plaintiff in the action was the brother of Alonzo Hull, who was a trustee and vice president of the corporation, and who was really the moving factor in the suit, he having brought the suit as agent for his brother. Most confidential relations may be presumed to have existed between the plaintiff and defendant, and under ordinary circumstances a father would be the last person to take the initiative in instituting legal proceedings against the interests of the son, especially when under the circumstances such proceedings would surely inaugurate a series of suits which could but result in financial ruin. This case strikingly presents the pernicious doctrine con tended for that a corporation, under the circumstances, has a right to prefer its creditors. The vice president and trustee of the company, who is presumed to know all about its condition, brings the action at a critical juncture for his brother, and serves the summons on the president of the company, who is the son of the claimant and nephew of the agent. No complaint was filed and the service was practically a secret one, and the claim could go to judgment and a preference lien be established before other creditors were aware that the fund was in danger; the practical result would be the same as if the corporation had confessed judgment in favor of the claimant. While there is no law, either civil or moral, which will deprive a citizen of his legal remedies against a corporation which is owned and controlled by his relatives, yet the circumstances of this case convince us that the managers of the corporation were satisfied that they could not weather the financial storm which had overtaken them, and they proposed to make their relatives good at the expense of the other creditors. The next morning after the service of the Hull summons, the secretary of the company notified the appellant bank of the commencement of the Hull suit, and immediately the bank commenced suit by serving summons in the same manner in which it had been served in the Hull suit. No notification was given to any other creditors, although some of them were engaged in business in the same block in which the business of the defaulting corporation was carried on. It is insisted upon by the appellants that as long as a corporation does no affirmative act to assist the creditors to obtain their judgment, no inference of collusion can be drawn, and that the obligation does not attach to make a helpless or dilatory fight on a suit to which there is no defense. Certainly we think it was not the duty, or even the right, of this corporation to expend its funds in unavailing litigation ; but the company did some affirmative act, in the case of the bank at least. It discriminated in favor of the bank in the knowledge it imparted of its real condition. It affirma tively notified it of that condition, which resulted in the bank commencing proceedings to secure its indebtedness. And if the theory of the appellants should be sustained, no matter what the intention was, the practical result would be that by reason of this affirmative action of the company, the bank would recover its whole claim to the exclusion of the rights of the other creditors. Of course, there is no absolute or definite proof here that there was an attempt to prefer. The company did not say to Hull and the bank, “ We want to prefer you,” and they probably did not say in so many words that they wanted to be preferred; but the bank at least was furnished by the company with data sufficient to inspire desire in it to be preferred, and its prompt and vigorous action in response to. that information speaks with more emphasis than any mere form of words. In Giddings v. Dodd, 1 Dill. 116, it was held that creditors who receive an illegal preference are liable to the assignee of the bankrupt, and that the intent of the debtor to give, and of the creditor to secure, an unauthorized, preference may be shown by circumstances. Of course this. must be true, for such intentions could never be proven. In Buchanan v. Smith, 16 Wall. 277, it was held that a. creditor has reasonable cause to believe his debtor insolvent when such state of facts is brought to his notice respecting-the affairs and pecuniary condition of his debtor as would, lead a prudent business man to the conclusion that he, the debtor, is unable to meet his obligations as they mature in the ordinary course of business. It is insisted by the appellants that the doctrine announced in this case was overturned in Wilson v. City Bank, 17 Wall. 473. There were some announcements made in Buchanan v. Smith, which seem to have been overruled in Wilson v. City Bank, although the court undertook to distinguish that case from, the case of Buchanan v. Smith. The principal correction, however, made by the court to the principles stated in the-former case was as to the necessity of any affirmative action on the part of the bankrupt to prevent the judgment and levy; it having been announced in Buchanan v. Smith that a debtor who suffers his property to be seized on execution, when knowing himself to be insolvent, should apply for the benefit of the bankrupt act; and the court in Wilson v. City Bank decides that there is no legal obligation on the debtor to file a petition to prevent the judgment and levy, and that a failure to do so is not sufficient evidence of an intention to give a preference to the judgment creditor and to defeat the operation of the bankrupt law. But the court in the latter case says that: “ Very slight circumstances, however, which tend to show the existence of an affirmative desire on the part of the bankrupt to give a preference or to defeat the operation of the act, may, by giving color to the whole transaction, render the lien voidand that these special circumstances must be left to decide each case as it arises. In Little, Assignee v. Alexander, 21 Wall. 500, it was held that when the issue to be decided is whether a judgment against an insolvent was obtained with a view to give a preference, the intention of the bankrupt is the turning point of the case, and all the circumstances which go to show such intent should be considered. In that case the insolvent debtor gave his son and niece notes for an old debt so as to enable them to procure judgments before his other creditors; and it was held that the preference growing out of the transaction was void. In Denny v. Dana, 2 Cush. 160 (48 Am. Dec. 655), it was held that a preference will be avoided, if made by one who is insolvent with intent to give a preference to a creditor who had a reasonable belief that the debtor was insolvent or in contemplation of insolvency; and that the intent to give a preference would be inferred where such preference was the natural and probable result of the acts done. As we have before said, the preference established by the bank in this case, if the result of the litigation is to establish a preference, which is what the bank maintains here, was the direct result of the act of the corporation in informing it of the commencement of the suit by Hull. It also appears that when the company was in default in the Hull suit an agreement was made between the attorneys of Hull and the attorneys of the bank that judgment should not be entered in the Hull suit until the next day, when the company would become in default in the bank suit; and the complaints in both cases were placed on file, judgments entered and executions immediately issued and placed in the hands of the sheriff and at once levied. An affidavit setting up this state of facts was objected to and excluded by ruling of the court. We think that this testimony should not properly have been excluded ; that it was one of the circumstances tending to show a collusion and a suppression of knowledge, so far as the public was concerned, until the judgment of the bank could be obtained. All the circumstan’ces surrounding this litigation convince us that the insolvent condition of this company was known to the appellants; that there was a desire on the part of the company to prefer these appellant creditors, and that the condition of the company was made known to them for the express purpose of warning them that they should not delay in the commencement of their actions ; and that the result of this knowledge and action on the part of the company and of these appellants was to obtain liens upon the property of this corporation in fraud of the rights of other creditors. The judgment will, therefore, be affirmed. Hoyt and Stiles, JJ., concur.

Utter, J. The issue before us is whether certain vehicles owned or leased by appellant are exempt, under RCW 82.12.0254, from the use tax imposed by RCW 82.12.020. We hold they are not. Appellant United Parcel Service, Inc., seeks the benefit of a statutory exemption from the use tax imposed by RCW 82.12.020 on the use within this state, as a consumer, of tangible personal property. The exemption sought by UPS is that provided by RCW 82.12.0254 (formerly RCW 82.12-.030(4)), which provides: The provisions of this chapter shall not apply ... in respect to the use by the holder of a carrier permit issued by the Interstate Commerce Commission of any motor vehicle or trailer whether owned by or leased with or without driver to the permit holder and used in substantial part in the normal and ordinary course of the user's business for transporting therein persons or property for hire across the boundaries of this state if the first use of which within this state is actual use in conducting interstate or foreign commerce . . . UPS contends that it has been wrongfully denied the benefit of this exemption with respect to certain of its motor vehicles. UPS operates a nationwide package delivery service on a "from and to all points" basis. In order to do this, UPS has developed an operating plan which works as follows: Packages to be picked up within an "operating area" are picked up at the shipper's address by a vehicle which UPS calls a "package delivery car" (the familiar brown van) and carried to an "operating center" which services that operating area. If a package is destined for an address within the same operating area, the package will remain at that center overnight and will be delivered on the next day by the same or another package delivery car operating out of that center. When the package is destined for an address within another operating area, it is carried through a "feeder system". Sometimes, a transfer is made by a direct trip, but usually it is accomplished by passing the package through a centrally located "hub". A hub is a major dispatching and package-sorting center which services a large number of operating areas. At the hub, the package is sorted and then loaded onto another trailer for delivery to the operating center serving the consignee's address. Thus, packages are transferred from their points of origin to the nearest hub. They are then transported from hub to hub across the country until they reach the hub nearest their destinations. From there they go to the proper operating center and finally to the destination itself. Ordinarily, trips between operating centers and hubs and between different hubs are carried out by tractors and trailers rather than by package delivery cars. Such trips may be carried out in three different ways. The first is by the direct trip of a single tractor-trailer combination. The second is by loading trailers on railroad flatcars. This method requires two different tractors for the complete trip — one to deliver the trailer to the railroad and one to pick it up. In the third method, two tractor-trailers set out from different locations, meet somewhere between those locations, exchange trailers, and return to their starting points. UPS uses three kinds of vehicles to provide its unitary interstate service: package delivery cars, tractors, and trailers. The package delivery cars, because they normally operate only within a single operating area, usually do not cross state lines. Tractors and trailers which transport packages between operating areas and hubs and between different hubs frequently do cross state lines on a regular basis, depending on the particular way in which they are used. As a general rule, UPS assigns new tractors to long hauls and older tractors to short-haul routes. In the state of Washington, tractor drivers document each state border crossing by filling out a "line-crossing card." All of the UPS vehicles — tractors, trailers, and delivery cars alike — are used for the same purpose: to carry packages from a point of pickup to a point of delivery. Of the total number of packages handled by UPS in Washington, over 70 percent are either picked up in Washington for delivery outside the state or delivered within Washington having originated outside the state. Thus, less than 30 percent of the packages carried in Washington constitute intrastate commerce. The dispute in this case centers on use taxes paid by UPS with respect to its "package delivery cars" operating within the state of Washington and 39 of its tractors. These vehicles either do not ever leave the state or do so only on fewer than 25 percent of their trips. The Department determined that these vehicles do not qualify for the use tax exemption because they were not used "in substantial part in the normal and ordinary course of the user's business for transporting therein persons or property for hire across the boundaries of this state ..." RCW 82.12.0254. Taxes were assessed in this dispute for the period from April 1, 1975, through March 31, 1979. The use tax paid on the 39 tractors amounts to $39,357; the tax paid on the delivery vans is in the neighborhood of $150,000. UPS's petition for refund of the taxes paid was denied by the Department of Revenue in 1980, and by the Board of Tax Appeals in a decision dated October 26, 1981. The Board ruled that the Department of Revenue had properly assessed use tax on UPS vehicles shown to have been operating exclusively within the state. It also concluded that, with respect to vehicles not operating exclusively within the state, the Department properly assessed an annual use tax on vehicles which had crossed the borders of this state on less than 25 percent of their trips taken in the normal course of UPS business during the tax year. Finally, the Board held that the Department's interpretation of the exemption statute and use of the "line-crossing test" violated neither the interstate commerce clause nor the equal protection clauses of the United States Constitution or the Constitution of the State of Washington. UPS petitioned for review in Superior Court pursuant to RCW 34.04.130. On January 4, 1983, the court entered a written order and judgment affirming the Board of Tax Appeals. This appeal followed. As this matter came before the Board of Tax Appeals for a formal hearing, judicial review of the Board's decision is governed by RCW 34.04.130 and 34.04.140. RCW 82.03.180. Review is on the record of the administrative tribunal itself, not of the superior court. Franklin Cy. Sheriffs Office v. Sellers, 97 Wn.2d 317, 323-24, 646 P.2d 113 (1982), cert. denied, 459 U.S. 1106 (1983). Issues of law are reviewed under the "error of law" standard of RCW 34.04.130(6)(d). Sellers, at 325. This standard "allows the reviewing court to essentially substitute its judgment for that of the administrative body, though substantial weight is accorded the agency's view of the law." Sellers, at 325. Central to our disposition is the rule that tax exemptions are narrowly construed. Department of Rev. v. Schaake Packing Co., 100 Wn.2d 79, 83-84, 666 P.2d 367 (1983); Group Health Coop. v. State Tax Comm'n, 72 Wn.2d 422, 429, 433 P.2d 201 (1967). I The first question is whether the Board of Tax Appeals erred in ruling that appellant's vehicles which were used solely within the state of Washington could not qualify for exemption from the use tax. Under RCW 82.12.0254, quoted above, a motor vehicle is exempt from use tax if: 1. The user holds an ICC permit; 2. The vehicle is used a. in substantial part b. in the normal and ordinary course of the user's business c. for transporting therein persons or property for hire across the boundaries of the state; and 3. The first use of the vehicle in Washington is actual use in conducting interstate or foreign commerce. The Department does not attempt to argue that the UPS vehicles have failed to meet the first and third of these elements. The controversy in this case centers on the second element, requiring that, in order to be exempt from the use tax, a vehicle must be: used in substantial part in the normal and ordinary course of the user's business for transporting therein persons or property for hire across the boundaries of this state . . . (Italics ours.) UPS contends that this language merely requires that a vehicle be used in substantial part to carry property which will cross or has crossed a state boundary. According to UPS, a vehicle need not itself cross a state boundary in order to qualify for exemption from the use tax. In other words, the boundary-crossing language in this exemption statute applies to the property being carried rather than the vehicle carrying it. Thus, all UPS vehicles would qualify for the exemption; the vehicles would have been used in substantial part in conducting interstate commerce because over 70 percent of the parcels carried by UPS are interstate parcels. Stipulation of fact 4.1. Even the delivery vans, most of which never cross a state boundary, could qualify for the exemption under this interpretation of RCW 82.12-.0254. The Department, on the other hand, contends that the Legislature did not intend to exempt from the use tax all motor vehicles substantially involved, directly or indirectly, in interstate commerce; rather, the exemption was intended to apply only to those motor vehicles which actually cross the boundaries of this state while carrying persons or property for hire. In other words, the vehicle itself must cross the state line to be eligible for the exemption. (Of course, the vehicle would have to be used "in substantial part" for crossing state boundaries while carrying cargo; one trip would not be enough to earn an exemption.) The language of RCW 82.12.0254 favors the Department's position. The exemption refers to the "use . . . of any motor vehicle." The vehicle must be "used . . . for transporting therein persons or property . . . across the boundaries of this state ..." (Italics ours.) UPS's argument that only the persons or property, and not the vehicle, need cross state lines ignores the word "therein." Statutes are to be construed, wherever possible, so that "no clause, sentence or word shall be superfluous, void, or insignifi cant". Kasper v. Edmonds, 69 Wn.2d 799, 804, 420 P.2d 346 (1966), quoting Groves v. Meyers, 35 Wn.2d 403, 407, 213 P.2d 483 (1950). Both UPS and the Department argue that a consideration of other exemptions from the sales and use tax which are not directly applicable in this case support their opposing interpretations of the provision here at issue. UPS points to the exemption for use of tangible personal property which becomes a "component part of any motor vehicle or trailer used" by an ICC permit holder. That exemption, also found in RCW 82.12.0254, contains no boundary-crossing requirement. UPS argues that it would be irrational to say that, while its delivery vans are not exempt from the use tax, new parts put on the vans are exempt. UPS also cites the exemption in RCW 82.12.0254 for "the use of any airplane, locomotive, railroad car, or watercraft used primarily in conducting interstate or foreign commerce ..." Again, this exemption contains no requirement that the airplanes, trains, or boats actually cross state boundaries. UPS argues that RCW 82.12.0254 can be construed consistently as a whole only if no line-crossing requirement is imposed for exemption of motor vehicles as well. The State, however, refers to the elementary rule that where the Legislature uses certain statutory language in one instance, and different language in another, there is a difference in legislative intent. See Seeber v. Public Disclosure Comm'n, 96 Wn.2d 135, 139, 634 P.2d 303 (1981). The presence of boundary-crossing language in the motor vehicle carrier exemption, taken together with the absence of such language in the exemption for other types of carriers, would thus support the State's interpretation of RCW 82.12.0254. Moreover, the wisdom or social desirability of taxing motor vehicles used solely within the state, while exempting component parts of those vehicles, is not for the courts to decide. See St. Paul & Tacoma Lumber Co. v. State, 40 Wn.2d 347, 351, 243 P.2d 474 (1952). The issue is what the Legislature intended; that intent is to be deduced, as far as is possible, from what the Legislature said. St. Paul, at 351. We construe RCW 82.12.0254 to require that a vehicle actually cross the state boundaries in order to be eligible for exemption from the use tax. The package delivery vehicles operate totally within Washington and do not qualify for the exemption. II UPS next contends that the Board of Tax Appeals erred in upholding the decision by the Department of Revenue to impose a use tax on those vehicles belonging to UPS which crossed the state line on fewer than 25 percent of their trips. UPS argues that the Department's decision was arbitrary and capricious. As discussed earlier, UPS vehicles used solely within the state cannot meet the threshold requirement for exemption because they are not used for transporting therein persons or property for hire across state boundaries. Many UPS vehicles, however, are used for transporting cargo across state boundaries. These vehicles (primarily tractor-trailers) are exempted from the use tax if such interstate use is "substantial". RCW 82.12.0254. Historically, the Department of Revenue has chosen among several methods to determine whether a vehicle is used "in substantial part" in interstate commerce under RCW 82.12.0254. The various methods have included the number of trips across state lines, amount of interstate hauling revenue, and ton-miles traveled in interstate commerce. The method used by the Department in each case has depended upon the nature of the business involved. Stipulation of fact 5.2. In this case, the Department determined that 39 of UPS's tractors were taxable. That determination was made as follows: The auditor first determined the mileage covered by each vehicle in each year in the audit period in the states of Washington, Oregon, and Idaho. If a vehicle's mileage in any one year was entirely within Washington, no further audit was performed and use tax was assessed. If a vehicle's mileage was in the state of Washington and also in the other states, the auditor proceeded to determine that vehicle's trips in each year of the audit period which involved a crossing of the Washington State lines as a percentage of its total trips in that year. Use tax was assessed with respect to any vehicle which, in any year, had less than 25 percent line-crossing trips. The percentage of line-crossing trips was ascertained by referring to the line-crossing cards which UPS drivers are required to fill out upon crossing a state boundary. UPS argues that use of the 25 percent line-crossing test is arbitrary and capricious because that test is the only one which the vehicles at issue here are unable to meet. They claim that many of their vehicles which do not cross state lines on 25 percent of their trips could pass the ton-mile or interstate hauling revenue tests sometimes used by the Department. Based upon this, they argue that the Department's refusal to use the ton-mile and interstate hauling revenue tests in this case is arbitrary and capricious because the Department has, in the past, used those same tests in determining "whether a vehicle is used 'in substantial part' in interstate commerce." Stipulation of fact 5.2. The fact that the Department may have used various tests to determine whether a vehicle is used in substantial part in "interstate commerce", however, does not require the Department to use those same tests to determine whether a vehicle is used "in substantial part . . . for transporting therein persons or property for hire across the boundaries of this state ..." The two inquiries are quite different; the same measurement may not work for both. A vehicle (such as a UPS package delivery van) might be shown to be substantially involved in "interstate commerce" under the interstate hauling revenue test. Yet, that same vehicle might never have been used to actually transport property across state boundaries. This could only be shown by a line-crossing test such as that used by the Department. Moreover, a line-crossing test as a measure of the sub-stantiality of a vehicle's use to carry cargo across state lines is far more practicable. Application of a revenue or ton-mile test to each vehicle that crossed a state line would require an immense amount of detailed data as to the contents of each particular vehicle. While UPS offered general statistics regarding its operations as a whole, the type of detailed information necessary for the use of a revenue or ton-mile test does not appear to have been available. All that is needed to apply the 25 percent line-crossing test, however, are the line-crossing cards filled out by UPS drivers when a state boundary is crossed. Agency action is "arbitrary and capricious" only if it is "'willful and unreasoning action in disregard of facts and circumstances.'" Skagit Cy. v. Department of Ecology, 93 Wn.2d 742, 749, 613 P.2d 115 (1980). We do not find the Department of Revenue's application of a 25 percent line-crossing test as a measure of the substantiality of a vehicle's use in hauling cargo across state boundaries to have been arbitrary and capricious. Ill The next issue raised by UPS is whether the Department's construction and application of RCW 82.12.0254 violates the commerce clause of the United States Constitution. The commerce clause, U.S. Const. art. 1, § 8, cl. 3, requires four things of a state tax on interstate commerce: (1) there must be a sufficient nexus between the interstate activities and the taxing state; (2) the tax must be fairly apportioned; (3) the tax must not discriminate against interstate commerce; and (4) the tax must be fairly related to the services provided by the state. Complete Auto Tran sit, Inc. v. Brady, 430 U.S. 274, 279, 51 L. Ed. 2d 326, 97 S. Ct. 1076 (1977); Chicago Bridge & Iron Co. v. Department of Rev., 98 Wn.2d 814, 826, 659 P.2d 463, appeal dismissed, _U.S__, 78 L. Ed. 2d 718, 104 S. Ct. 542 (1983). UPS does not argue that the State of Washington is constitutionally unable to tax the vehicles here at issue. A state may, under appropriate conditions, tax intrastate activity even though that activity is part of interstate commerce. Department of Rev. v. Association of Wash. Stevedoring Cos., 435 U.S. 734, 745, 55 L. Ed. 2d 682, 98 S. Ct. 1388 (1978). UPS does argue, however, that the Department's construction of RCW 82.12.0254 discriminates between different forms of interstate commerce, thus violating the commerce clause. UPS contends that the State's refusal to allow use tax exemptions to those vehicles which do not cross state boundaries results in a classification among interstate motor carriers based upon the manner in which they operate. A carrier operating its interstate business so as to use a single vehicle to transport property from a point in Washington to a point in another state will be eligible for the exemption while a carrier, such as UPS, whose efficiency stems from its use of different kinds of vehicles, some operating within and some both within and without the state, will he denied the exemption. UPS argues that placing upon the latter type of carrier a burden not borne by the former, when both use their vehicles in interstate commerce, violates the commerce clause. UPS relies primarily on Boston Stock Exch. v. State Tax Comm'n, 429 U.S. 318, 50 L. Ed. 2d 514, 97 S. Ct. 599 (1977) to support its argument. In that case, the Supreme Court declared unconstitutional a New York tax on stock transfers and sales which gave a 50 percent reduction in the tax to transactions by nonresidents when the transactions involved in-state sales. Residents and nonresidents making out-of-state sales but in-state transfers did not receive the deduction. The statute also limited the tax to $350 when the transactions involved in-state sales. When the transac tion involved out-of-state sales, there was no limit on the tax. The Court found unconstitutional discrimination because the tax imposed "a greater tax liability on out-of-state sales than on in-state sales ..." 429 U.S. at 332. The Court held that a state could not "tax in a manner that discriminates between two types of interstate transactions in order to favor local commercial interests over out-of-state businesses ..." (Italics ours.) 429 U.S. at 335. There is no such favoritism toward local commercial interests in the use tax scheme before us in this case. "A state tax on interstate commerce is not discriminatory unless it affords a 'differential tax treatment of interstate and intrastate commerce'." Chicago Bridge & Iron Co., 98 Wn.2d at 830, citing Commonwealth Edison Co. v. Montana, 453 U.S. 609, 618, 69 L. Ed. 2d 884, 101 S. Ct. 2946 (1981). Thus, RCW 82.12.0254 does not violate the commerce clause. IV Finally, we are faced with the issue of whether the Department's construction and application of RCW 82.12-.0254 violates the equal protection clause of the Washington State Constitution. Const. art. 1, § 12 provides: No law shall be passed granting to any citizen, class of citizens, or corporation other than municipal, privileges or immunities which upon the same terms shall not equally belong to all citizens, or corporations. To comply with Const. art. 1, § 12, a legislative classification must meet three requirements: (1) the legislation must apply alike to all persons within a designated class, (2) there must be reasonable grounds for distinguishing between those who fall within the class and those who do not, and (3) the disparity in treatment must be germane to the object of the law in which it appears. Sonitrol N.W., Inc. v. Seattle, 84 Wn.2d 588, 589-90, 528 P.2d 474 (1974). UPS contends that the second requirement has not been met in this case. It argues that, by exempting from the use tax only those vehicles which carry cargo across state lines, the State has discriminated against carriers such as UPS which have, in the interest of efficiency, developed a delivery system whereby only a few vehicles actually cross state lines. Such a distinction between carriers is urged to be unreasonable because it is based solely on a difference in the method of operation of a certain business. This argument is not persuasive. We have stated that "a classification based solely on a difference in the method of operation of a particular kind of business is permissible." Sonitrol, at 591. In Sonitrol, the court held that a tax imposed upon centrally monitored burglar alarm systems did not violate the equal protection clause found in Const. art. 1, § 12, even though the tax was at a rate 70 times that imposed on local-alarm and foot-patrol burglar alarm systems. The Legislature has broad discretion in making classifications for purposes of taxation. Texas Co. v. Cohn, 8 Wn.2d 360, 386, 112 P.2d 522 (1941). The difference between the classes need not be great. It may consist of physical and chemical dissimilarity of commodities or difference in the character or manner of their uses. Classification may also be permissible if it is reasonably related to some lawful taxing policy of the state, such as greater ease or economy in the administration or collection of a tax ... or the equalization of the burdens of taxation. Cohn, at 386-87. In Boeing Co. v. State, 74 Wn.2d 82, 442 P.2d 970 (1968), this court upheld a use tax imposed on bailments of personalty not involving consideration, even though leases of personalty were not taxed. The basis of the subject classification was simply the fact that lessees paid for the use of the personalty while bailees did not. Boeing, at 87. In Black v. State, 67 Wn.2d 97, 406 P.2d 761 (1965), the court upheld a retail sales tax on the lease of a ship used as a floating motel despite the fact that similar transactions involving hotels on land were exempted from the tax. In Hemphill v. Tax Comm'n, 65 Wn.2d 889, 400 P.2d 297 (1965), appeal dismissed, 383 U.S. 103, 15 L. Ed. 2d 615, 86 S. Ct. 716 (1966), the court upheld a sales tax which was imposed on admission fees of amusement and recreation activities such as golf, ski lifts, skating, and billiards, but which excluded bowling. A challenger bears the burden of showing there is no reasonable basis for the questioned classification in a revenue statute. The test is merely whether any state of facts can reasonably be conceived that would sustain the classification. Hemphill, at 891-92. In this case, a distinction has been made between vehicles used entirely within the state of Washington and vehicles used in substantial part outside the state. It is logical, or at least conceivable, that vehicles used entirely within the state would benefit from the services provided by the State to a greater degree than would vehicles often used outside the state. This justifies the line-crossing requirement for exemption from the use tax and the State's construction and application of RCW 82.12.0254 does not violate Const. art. 1, § 12. The decision of the Board of Tax Appeals is affirmed. Williams, C.J., Rosellini, Brachtenbach, Dolliver, Dimmick, and Pearson, JJ., and Cunningham and Wie-land, JJ. Pro Tern., concur. The detailed information which was made available by UPS referred to the contents of package delivery vans. Such vans rarely cross state lines, however; most of the line-crossing is done by tractor-trailers. Information regarding the contents of local delivery vans is of little help in the application of a revenue or ton-mile test to tractor-trailers.

Durham, J. On February 6,1990, James Craig Mail was charged by information with the first degree assault of his girlfriend, Della Brouillet. As a result of a plea agreement, an amended information was filed on May 3, 1990, charging Mail with attempted assault in the first degree to which he entered an Alford plea. See North Carolina v. Alford, 400 U.S. 25, 37, 27 L. Ed. 2d 162, 91 S. Ct. 160 (1970). Based upon an offender score of 2 and a seriousness level of XI, the standard range for attempted assault in the first degree is 57.75 to 76.5 months. RCW 9.94A.360(10); former RCW 9.94A-.310(1), (2). The State recommended 57.75 months, the low end of the standard range. The community corrections officer recommended an increased exceptional sentence of 85 months. Mail requested a decreased exceptional sentence of 12 months. A sentencing hearing was held on July 9, 1990. The court sentenced Mail to 76 months, at the high end of — but within — the standard range. In addition to oral argument by the parties and statements by the defendant and his mother at the hearing, the parties submitted the following documents to the court: the defendant's presentence statement; the statement of the prosecuting attorney; the presentence investigation report (PSI); and letters to the court from the defendant, the defendant's mother, and the defendant's two sisters. The PSI showed Mail's 1981 conviction for assault in the second degree and listed the Grays Harbor County cause number for that conviction. The PSI also stated that Mail "has been charged with three assaultive violations since being placed on [probation]." Clerk's Papers (CP), at 23. The PSI did not describe the details of the 1980 assault or the subsequent assault charges. The defendant's presentence statement informed the court that the 1981 conviction resulted from "a fight with another man outside a tavern". CP, at 33. Through the file number listed in the PSI, the trial judge obtained and reviewed the 1981 conviction file. The file revealed that the conviction resulted from an assault in which Mail "broke a man's jaw". Report of Proceedings (RP), at 8-9. The court also learned that only one of the charged probation violations referenced in the PSI was assaultive in nature and that two of the three "charges" actually resulted in convictions and increased jail time. The court referred to these facts at the July 9 sentencing hearing. The defendant did not object. Mail appealed to Division Two of the Court of Appeals, arguing that RCW 9.94A.110 limits the information that a court may consider in sentencing. The Court of Appeals held that Mail could not appeal his standard range sentence because he did not raise an appealable procedural issue under RCW 9.94A.210(1), and, alternatively, that the issue raised did not merit discretionary review under RAP 2.3(b). See State v. Mail, 65 Wn. App. 295, 828 P.2d 70 (1992). The defendant's petition for review to this court was treated as a motion for discretionary review pursuant to RAP 13.3(a) and (c) and was granted on October 6, 1992. Mail raises three issues on appeal: (1) is this claim barred by RCW 9.94A.210(1), which prohibits appeals of sentences within the standard range; (2) did the trial court exceed its authority by considering the material from the Grays Harbor County file; and (3) was Mail entitled to an evidentiary hearing to determine the validity of the information in the Grays Harbor County file? We hold that Mail's claim is barred by the clear language of RCW 9.94A.210(1), and, therefore, do not reach the remaining issues. The Sentencing Reform Act of 1981 (SRA) states clearly that a "sentence within the standard range for the offense shall not be appealed." RCW 9.94A.210(1). In State v. Ammons, 105 Wn.2d 175, 713 P.2d 719, 718 P.2d 796, cert. denied, 479 U.S. 930 (1986), we affirmed the rule that appeals which challenge the amount of time given within the correct standard range are precluded. Ammons, at 182. "The court may impose any sentence within the range that it deems appropriate." RCW 9.94A.370(1). A trial court's decision regarding the length of a sentence within the standard range is not appealable because "as a matter of law there can be no abuse of discretion . . .." Ammons, at 183. This accords with the traditional notion that, outside of narrow constitutional or statutory limitations, a sentencing judge's discretion remains largely unfettered. See State v. Herzog, 112 Wn.2d 419, 423-25, 771 P.2d 739 (1989) (discussing the time-honored latitude afforded judges at sentencing). Having precluded challenges to the amount of time given within the standard range, however, Ammons continued on, in dicta, to add the language upon which Mail relies for this appeal. Specifically, Ammons stated, without explanation or authority, that "[a]n appellant, of course, is not precluded from challenging on appeal the procedure by which a sentence within the standard range was imposed." (Italics ours.) Ammons, at 183. Mail claims that because he is challenging only the procedure by which the trial judge arrived at his sentence; i.e., the consideration of the Grays Harbor County records, that he is entitled to appeal under Ammons. We disagree. We do not believe that the Ammons dicta should be so broadly interpreted. To determine what was meant by "procedure", it is appropriate to refer to the act that Ammons was construing — the SRA itself. The SRA is the sole statutory source of sentencing authority. Therefore, we must look to this statute to determine exactly what procedures are required in imposing this standard range sentence. The SRA mandates that the court "shall consider the presentence reports . . . and allow arguments from the prosecutor, the defense counsel, the offender, the victim, the survivor of the victim, or a representative of the victim or survivor, and an investigative law enforcement officer as to the sentence to be imposed." RCW 9.94A.110. This section of the statute forms a baseline — a minimum amount of information which, if available and offered, must be considered in sentencing. By comparison, RCW 9.94A.370(2) identifies the information that the court "may rely on" in arriving at a sentence within the standard range, but does not limit in any way the sources of information a sentencing court may consider. State v. Handley, 115 Wn.2d 275, 282, 796 P.2d 1266 (1990). See also David Boerner, Sentencing in Washington § 6-13, at 6-21 (1985) (noting that the SRA places no limitations on the information a sentencing judge may consider in arriving at a sentence within the standard range). Hence, the sentencing court must consider information presented pursuant to RCW 9.94A.110, but may also consider other sources of information in arriving at a sentence within the standard range. The SRA also provides that if a defendant "disputes material facts [used in sentencing], the court must either not consider the fact or grant an evidentiary hearing- on the point." RCW 9.94A.370(2). This is the only other procedure required in standard range sentencing which may have been applicable in this case. The SRA farther provides that if no objection is raised to the information presented or considered during sentencing, then that information is considered "acknowledged". RCW 9.94A.370(2). In order to challenge the information, the objection must be both timely and specific. Handley, at 283. The SRA provides for an evidentiary hearing in order to determine the truth or falsity of the challenged facts. RCW 9.94A.370(2); Handley, at 282; Herzog, at 431-32. Since the sentencing judge may rely on any facts which are proved at this hearing, any objection must go to the veracity of the facts, not just their use. The sentencing judge is always free to rely on acknowledged information. RCW 9.94A.370(2). In sum, we now hold that in order for a "procedural" appeal to be allowed under Ammons, it must be shown that the sentencing court had a duty to follow some specific procedure required by the SRA, and that the court failed to do so. Without such a showing, the clear rule of RCW 9.94A-.210(1) applies and the appeal will be denied. Outside of the SRA, the only other possible limitation on the judge's discretion might be found in the provisions of our state and federal constitutions. Herzog, at 423. In Herzog, we "assume[d] without deciding" that constitutional challenges to a standard range sentence are always allowed, regardless of the clear prohibition of RCW 9.94A.210(1). Herzog, at 423. That case involved a defendant's claim that the sentencing judge's consideration of a constitutionally invalid conviction violated his due process rights, even though he received a sentence within the proper standard range. Although we ultimately denied the defendant relief, we did note that a constitutional problem would be raised if a judge relies upon "material facts of constitutional magnitude that are not true". Herzog, at 431 (citing United States v. Tucker, 404 U.S. 443, 30 L. Ed. 2d 592, 92 S. Ct. 589 (1972); Townsend v. Burke, 334 U.S. 736, 92 L. Ed. 1690, 68 S. Ct. 1252 (1948)). In the case at hand, Mail does not dispute the veracity of the facts relied upon by the trial judge. Since the only applicable procedures mandated by the SRA in this case are those dictated by RCW 9.94A.110 and RCW 9.94A.370(2), these are the only statutory bases for an appeal under Ammons. In order to bypass the prohibition on appeals found at RCW 9.94A.210(1), this petitioner must show either that the trial court refused to consider information mandated by RCW 9.94A.110, or that the petitioner timely and specifically objected to the consideration of certain information and that no evidentiary hearing was held. This reading serves to ensure that the exception briefly noted in Ammons does not end up swallowing the clear rule of RCW 9.94A.210(1). Were we to read Ammons so broadly as Mail urges, it would allow every challenge to a standard range sentence which is arguably "procedural". This would effectively eliminate the prohibition against appeals contained in RCW 9.94A.210(1). For instance, in the case at hand, the trial judge was under no obligation to explain his reason for imposing a sentence at the high end of the standard range. Yet, it is his discretionary decision to do so that forms the basis for this appeal. It is almost self-evident that, while cloaking his arguments in "procedure", the ultimate object of this petitioner in seeking resentencing is to receive a lower sentence within the standard range. Such an outcome can only be allowed to correct egregious errors in procedure. Cf. RCW 9.94A.030(28) (" 'Sentence range' means the sentencing court's discretionary range in imposing a nonappealable sentence."). Turning to the case at hand, we note initially that Mail does not contest that the sentencing judge allowed for presentation of the information dictated by RCW 9.94A.110. Rather, his contention is that the trial judge went beyond that information in his considerations. As discussed above, this is not an appealable, issue since RCW 9.94A.110 does not limit the information a judge may consider. As to Mail's contention that the trial court should have held an evidentiary hearing on the contents of the Grays Harbor County file, Mail's failure to object at sentencing means that he has acknowledged those facts and they may be used by the trial court. Even had he objected, Mail has never contested the validity of the relied-upon facts, so any objection would have been meaningless. The trial court followed the correct procedures in imposing a sentence within the standard range, and so this appeal is barred by RCW 9.94A.210(1). In sum, we affirm the Court of Appeals' holding that RCW 9.94A.210(1) precludes Mail's appeal and affirm the trial court's denial of Mail's motion to vacate his judgment and sentence. Andersen, C.J., and Utter, Brachtenbach, Smith, Guy, Johnson, and Madsen, JJ., concur. RAP 2.3(b)(3) allows discretionary review of a trial court action that so far departs from the "accepted and usual course of judicial proceedings ... as to call for review by the appellate court." Although the Court of Appeals' use of RAP 2.3 in these circumstances is questionable, neither party has properly briefed this issue and it will not be a consideration in our decision. Our explanation here should not be confused with our discussions regarding the appropriate considerations for exceptional sentences. Unlike the nearly unlimited discretion afforded to judges in imposing the appropriate sentence within the standard range, the discretion to impose an exceptional sentence is both more limited and more amenable to review. See RCW 9.94A. 120(3); RCW 9.94A.210. Most importantly, trial courts are explicitly prohibited by the "real facts doctrine" from relying on "[fjacts that establish the elements of a more serious crime or additional crimes" in imposing an exceptional sentence. RCW 9.94A.370(2). No such limitation exists in sentencing within the standard range. No constitutional issues were raised to the Court of Appeals in this case. In his motion for discretionary review, Mail makes passing reference to the "right to appeal" contained in article 1, section 22 of the Washington State Constitu tion. Motion for Discretionary Review, at 11. However, he has not adequately argued or briefed this issue. Moreover, neither party has cited nor discussed State v. Herzog, 112 Wn.2d 419, 771 P.2d 739 (1989). Since we received neither proper briefing nor argument on the issue of the appealability of constitutional chal-lenges, we will once again reserve this issue for another day. In a limited number of cases, we have allowed a challenge to the authority of the trial court to impose alternative sentences. State v. Onefrey, 119 Wn.2d 572, 574 n.1, 835 P.2d 213 (1992); State v. Bernhard, 108 Wn.2d 527, 530, 741 P.2d 1 (1987), overruled in part on other grounds in State v. Shove, 113 Wn.2d 83, 776 P.2d 132 (1989). These cases are unlike the situation in State v. Ward, 49 Wn. App. 427, 743 P.2d 853 (1987), where an appellate court permitted review of the judge’s discretionary decision to deny an exceptional sentence below the standard range. Clearly, in Ward, the appellant was asking for less time, not an alternative sentence. See State v. Ammons, 105 Wn.2d 175, 182, 713 P.2d 719, 718 P.2d 796 (precluding challenges to the amount of time imposed when within the standard range), cert. denied, 479 U.S. 930 (1986). To the extent that Ward is inconsistent with the result we reach today, it is overruled.

Dollivek, J. In late 1982, Zeta Corporation, through its principal, defendant C.E. Austin, became interested in purchasing a piece of commercial property in Burien, Washington, known as the "Bargain Boys" property. The owner of the property was in bankruptcy, and negotiations for the sale were made through the bankruptcy trustee. In connection with the sale, the bankruptcy court was presented with two separate appraisals of Bargain Boys. One completed in June 1982 valued the property at $154,700. A July 1982 appraisal valued the property at $120,000. At the time of these appraisals, the property was in disrepair and required extensive remodeling. The bankruptcy court entered an order authorizing the sale to Zeta for a purchase price of $150,000. By this time, Zeta had formed a partnership with Grand Investments Company in order to finance the purchase. In September 1982, after Zeta was given the authority to purchase the property (but before it actually had done so), defendant Austin retained the appraisal firm of Lamb, Hanson, and Lamb (the appraiser) in order to obtain an opinion letter stating the probable fair market value of Bargain Boys. Austin told the appraiser he owned the building or that he "had an interest in it". Austin also requested the appraisal be made as if all required renovation had been completed. Following these instructions, the final appraisal, dated September 15, 1982, placed the "As Is" value of Bargain Boys at $460,000. Also prior to the purchase by Zeta of the property for $150,000, it decided to sell the property to Cornerstone Investments for $200,000. In exchange for a warranty deed from Grand (Zeta assigned its interest in the property to Grand at the time of the purchase from the bankruptcy trustee), Cornerstone gave a promissory note for the purchase price. This transaction was largely completed without documentation through defendant Brink, an attorney who acted as escrow agent for the transaction. In order to afford the $200,000 purchase price, Cornerstone contacted defendant Pacific Home Equity, Inc. (Pacific) and requested a second position deed of trust in the amount of $75,000. Cornerstone represented to Pacific the purpose of the second deed of trust would be to restore and repair the property. Pacific was given a copy of the $460,000 "As Is" appraisal. On February 22, 1983, defendant Clifford B. Weiss, a sales agent for Pacific, went to the home of plaintiffs Paul and Grace Schmidt and convinced them to invest the required $75,000 in Bargain Boys. Both plaintiffs are retired and had only invested on a limited basis up to this time. Weiss told plaintiffs the property was owned by Cornerstone Investments, Inc., and that their investment would be used to repair the property. Weiss also told plaintiffs the investment would pay 20 percent interest. He also showed plaintiffs the $460,000 appraisal. While plaintiffs were deciding whether to make the investment, Weiss informed them of Grand's first deed of trust. After assurances were made that this would not adversely affect their investment, plaintiffs signed an escrow agreement giving Pacific the power to act as their agent for purposes of the investment. Plaintiffs also made out a check in the amount of $75,000 to Pacific. At no time did Weiss mention to plaintiffs the actual condition of the building, nor did plaintiffs make any effort to examine the property before making their final decision to invest their money. As soon as Pacific received plaintiffs' check, it issued a $75,000 check to Brink, who acted both as escrow agent for the transaction and legal counsel for Zeta/Grand. Brink immediately made arrangements to purchase Bargain Boys for Zeta/Grand from the bankruptcy trustee. Brink then prepared a deed from Grand to Cornerstone, a note for the $200,000 purchase price, and a first deed of trust running back to Grand. Brink next closed the loan from plaintiffs to Cornerstone and at the same time issued a second deed of trust on the property to plaintiffs. Brink made numerous payments in connection with costs accrued during the simultaneous closings. These payments included attorney fees and fees to Pacific pursuant to the escrow agreement. In the end, only $5,000 of the original $75,000 plaintiffs invested actually went into repairing Bargain Boys. A significant portion of the $75,000 was used to make interest payments to Grand from Cornerstone. Plaintiffs received five interest payments on their investment before they were informed Cornerstone was going to default on the note. In order to preserve their second place interest, plaintiffs made payments to Grand on behalf of Cornerstone. These checks were made out to defendant Brink. Plaintiffs made a total of $12,500 worth of payments to Grand before Grand foreclosed on Cornerstone, thereby cutting off plaintiffs' interest. At the time Grand foreclosed, plaintiffs' out-of-pocket expenses totaled $87,500. In January 1985, plaintiffs sued for damages resulting from their investment. In their complaint, plaintiffs alleged theories of conspiracy, fraud, negligent misrepresentation, The Securities Act of Washington (RCW 21.20) and Consumer Protection Act (RCW 19.86) violations, and intentional and negligent infliction of emotional harm. Prior to trial, plaintiffs entered into two settlement negotiations, one with defendants Michie and Stroman (escrow agents in related transactions) for $20,000 and the other with the appraiser for $50,000. Pursuant to RCW 4.22.060, separate reasonableness hearings were held in conjunction with the settlements. The trial court approved the settlement with Michie and Stroman after declaring the $20,000 settlement was reasonable. After hearing testimony from the parties on the settlement with the appraiser, but refusing to hear from plaintiffs' expert witness, the court held $50,000 was an unreasonable settlement amount. Instead, the court declared $150,000 a more appropriate settlement. Plaintiffs settled with the appraiser for $50,000 in spite of the court's ruling. After being informed the settlement would be accepted, the court advised the parties it would entertain a motion for reconsideration of its ruling after the trial against the remaining defendants. At trial, the court dismissed some of plaintiffs' claims for lack of evidence. The jury found Brink acted negligently as escrow agent; Weiss was negligent in his representation to the Schmidts and also violated the Consumer Protection Act; and Austin was liable for fraud, conspiracy and violation of the Consumer Protection Act. After calculating attorney fees and costs, prejudgment interest and a 10 percent reduction for plaintiffs' contributory fault share, the court reduced each defendant's total judgment by the $150,000 reasonableness figure. This resulted in the discharge, with prejudice, of the judgments against Weiss and Brink and a judgment against Austin totaling $67,196.70. The award against Austin, plus the settlements prior to trial, put plaintiffs' total recovery for their loss at $137,196.70. Prior to entry of its final judgment, the trial court denied reconsideration of its reasonableness ruling. Pursuant to RAP 4.2(a)(2), plaintiffs sought direct appeal to this court of the proceedings below. Defendants Austin and Brink filed numerous cross appeals as well. We granted review and affirm the trial court on all grounds. At the request of this court, the Washington State Trial Lawyers Association (WSTLA) and the Washington Defense Trial Lawyers (WDTL) submitted amici curiae briefs. I The first issue we address is whether the trial court erred in finding the $50,000 settlement between plaintiffs and the appraiser unreasonable. According to RCW 4.22.060(2): A release, covenant not to sue, covenant not to enforce judgment, or similar agreement entered into by a claimant and a person liable discharges that person from all liability for contribution, but it does not discharge any other persons liable upon the same claim unless it so provides. However, the claim of the releasing person against other persons is reduced by the amount paid pursuant to the agreement unless the amount paid was unreasonable at the time of the agreement in which case the claim shall be reduced by an amount determined by the court to be reasonable. The final report of the Senate Select Committee on Tort and Product Liability Reform contained the following comments on RCW 4.22.060: The bill does not establish any standards for determining whether the amount paid for the release was reasonable or not. It is felt that the courts can rule on this issue without specific guidance from the Legislature. The reasonableness of the release will depend on various factors including the provable liability of the released parties and liability limits of the released party's insurance. There is a legitimate concern that claimants will enter into "sweetheart" releases with certain favored parties. To address this problem, the section requires that the amount paid for the release must be reasonable at the time the release was entered into. Senate Journal, 47th Legislature (1981), at 636. As the above comments indicate, the Legislature was mainly concerned with two aspects of the settlement process: that the courts retain broad discretionary powers in determining reasonableness, and that the interests of non-settling parties be taken into consideration throughout the proceeding. An inquiry into reasonableness under RCW 4.22.060 necessarily involves factual determinations which will not be disturbed on appeal when supported by substantial evidence. Glover v. Tacoma Gen. Hosp., 98 Wn.2d 708, 718, 658 P.2d 1230 (1983). Substantial evidence is evidence in sufficient quantum to persuade a fair-minded person of the truth of the stated premise. State v. Thetford, 109 Wn.2d 392, 396, 745 P.2d 496 (1987). In Glover we stated the trial court should consider the following in assessing reasonableness: [T]he releasing person's damages; the merits of the releasing person's liability theory; the merits of the released person's defense theory; the released person's relative faults; the risks and expenses of continued litigation; the released person's ability to pay; any evidence of bad faith, collusion, or fraud; the extent of the releasing person's investigation and preparation of the case; and the interests of the parties not being released. Glover, at 717. No one factor should control, and the trial court must necessarily have discretion to weigh each case individually. Glover, at 718. We find in this case the trial court properly applied the considerations articulated in Glover in concluding the $50,000 settlement unreasonable. We also find substantial evidence in the record to support this conclusion. In applying Glover, the trial court focused on several aspects of plaintiffs' case. These included: an affidavit previously submitted by plaintiff Paul Schmidt, wherein he stated had he not been shown the $460,000 appraisal prepared by Lamb, Hanson, and Lamb, he never would have invested in the property; defendants' argument at the hearing to the effect that the affidavit itself established the appraiser's liability to be roughly one-half plaintiffs' overall potential recovery; the fact insurance carriers for Brink and the appraiser were most likely in the best position to pay a judgment in plaintiffs' favor; and the fact defendants successfully argued to the court the case was worth at least $300,000 although plaintiffs themselves had at times estimated the total value of damages to be more in the range of $600,000. We find these considerations, plus others articulated by the court in its oral ruling, sufficient to persuade a fair-minded person that $150,000 was a more reasonable settlement amount than the offered $50,000. Plaintiffs also argue the trial court erred in denying their expert an opportunity to testify to the reasonableness of the $50,000 settlement. Whether expert testimony will be allowed in reasonableness hearings is left to the discretion of the trial judge. Glover, at 718 n.3. Nothing in the statute requires such testimony, however, and we are confident that trial judges will develop their own procedures for handling these cases. Glover, at 718 n.3. The trial Judge here refused plaintiffs' expert an opportunity to testify because he felt the parties themselves had provided ample material upon which to make a decision. We find no error in the trial court's decision in this regard and affirm. Amicus WSTLA urges us to revise the Glover requirements. We believe the Glover requirements are adequate and decline the invitation to change them. Plaintiffs also contend the trial court erred in denying their motion for reconsideration of its reasonableness ruling. As we find the trial court's reasonableness ruling supported by substantial evidence, we also find no error in the decision of the court not to reconsider. II The next issue we examine is whether RCW 4.22.060 is unconstitutional because it allows the trial court to reduce the total sum of an injured party's damage award by an amount determined by the trial court rather than by a jury. We note at the outset two procedural defects which, by themselves, persuade us plaintiffs have not properly presented their constitutional objections to this court. According to RAP 10.3(a)(5), citations to legal authority and reference to relevant portions of the record must be included in support of issues raised on appeal. While plaintiffs do cite authority which establishes the constitutional right to trial by jury in some cases, they fail to cite legal authority supporting their specific constitutional challenge. See also Smith v. King, 106 Wn.2d 443, 451-52, 722 P.2d 796 (1986); Brown v. Safeway Stores, Inc., 94 Wn.2d 359, 374, 617 P.2d 704 (1980). In addition, the briefing supplied by plaintiffs leaves some question as to the precise constitutional issue being raised. Without adequate, cogent argument and briefing, this court should not consider an issue on appeal. Saunders v. Lloyd's of London, 113 Wn.2d 330, 345, 779 P.2d 249 (1989). For these reasons, we find plaintiffs have not properly raised their constitutional issue on appeal. Even had plaintiffs properly raised this issue, however, two cases cited by both amici WSTLA and WDTL in support of rejecting plaintiffs' constitutional argument persuade us RCW 4.22.060 is constitutional. In In re MGM Grand Hotel Fire Litig., 570 F. Supp. 913 (D. Nev. 1983), the court was asked to determine whether certain settlements in a wrongful death action were entered in "good faith" pursuant to Nev. Rev. Stat. § 17.245 (1979). MGM, at 926-27. The nonsettling litigants argued the court could not determine the good faith issue itself since good faith was a question which must be tried before a jury. MGM, at 926. In ruling against trial by jury the court stated: There is no right to a jury trial under N.R.S. 17.245 because the issue of "good faith" and the amount of a credit to which a non-settling defendant would be entitled is one of "equity" for which there is no right to trial by jury. The policy of encouraging settlements under N.R.S. 17.245 would be impaired if multiple trials by jury would have to be held in order to determine whether a settlement was in "good faith." A non-settling party is fully protected by its ability to present counter-affidavits or evidence at a hearing on the issue of "good faith." MGM, at 927. Amici also bring to our attention Barreto v. Waukegan, 133 Ill. App. 3d 119, 129, 478 N.E.2d 581 (1985) (no right to trial by jury on the issue of good faith of a settlement since the right to jury trial does not extend to special or statutory proceedings unknown at common law). As both of these cases indicate, the right to jury trial does not extend to procedures in equity, such as whether the amount of a proposed settlement is reasonable. Such questions are properly within the province of the trial court to decide. Ill We next consider whether the trial court erred by reducing the jury's award against each defendant by the $150,000 reasonableness figure and plaintiffs' 10 percent contributory fault share. Plaintiffs argue the court should have excluded their recovery for conspiracy, fraud and Consumer Protection Act violations before applying the $150,000 offset since the definition of "fault" under RCW 4.22 does not include intentional torts. Plaintiffs also argue their contributory fault share should not have been used to reduce defendants' liability for intentional torts. RCW 4.22.015, which defines "fault" for the purpose of RCW 4.22, provides: "Fault" includes acts or omissions, including misuse of a product, that are in any measure negligent or reckless toward the person or property of the actor or others, or that subject a person to strict tort liability or liability on a product liability claim. The term also includes breach of warranty, unreasonable assumption of risk, and unreasonable failure to avoid an injury or to mitigate damages. Legal requirements of causal relation apply both to fault as the basis for liability and to contributory fault. A comparison of fault for any purpose under RCW 4.22.005 through 4.22.060 shall involve consideration of both the nature of the conduct of the parties to the action and the extent of the causal relation between such conduct and the damages. The Senate Select Committee on Tort and Product Liability Reform in its final report made the following comment on the statute: The definition is intended to encompass all degrees of fault in tort actions short of intentionally caused harm. This would include negligence, gross negligence, recklessness, willful and wanton misconduct and strict liability. . . . The idea is to permit the trier of fact to consider all the conduct short of what would be considered an intentional tort and make a reduction of the plaintiff's recovery for his or her share. In making its determination the trier of fact may take into consideration both the nature of conduct and the causal relationship between that conduct and the harm. This will mean, for example, that plaintiff's contributory negligence may not reduce recovery as much in a strict liability action as it would in a negligence action. Senate Journal, 47th Legislature (1981), at 635. Although the Legislature's intent to exclude intentional conduct from the definition of fault is clear, we do not believe the trial court erred in applying the offset and contributory fault share against the sum total of each judgment. RCW 4.22.060(2) itself requires the claim of the releasing person against other persons to be reduced by the reasonableness figure. Nowhere does RCW 4.22.060 contemplate reducing portions of the releasing person's award depending on whether individual claims within the overall claim are based on intentional or negligent conduct. Furthermore, plaintiffs' argument does not account for the fact defendants in this case were jointly and severally liable for damages caused by their conduct. The trial court considered this in rejecting plaintiffs' argument below. Under plaintiffs' interpretation of the statutory scheme, we would be compelled to remand this case with instructions to the jury to award specific monetary values for intentional conduct and separate amounts for negligence based claims. Since neither plaintiffs nor defendants addressed joint and several liability in their briefs or at oral argument, we will not consider the issue sua sponte. Plaintiffs also argue the trial court erred by instructing the jury on contributory negligence. However, when plaintiffs' counsel made his exception to the court's instruction, he merely stated that as a matter of law no contributory negligence existed. One who objects to a jury instruction shall state distinctly the matter to which he objects and the grounds of his objection, specifying the number, paragraph or particular part of the instruction to be given or refused and to which the objection is made. CR 51(f). The purpose of taking exceptions to instructions is twofold: first, to sufficiently apprise the trial court of any alleged error in order to afford it the opportunity to correct the matter if necessary, and second, to prevent the unnecessary expense of a second trial. Couch v. Mine Safety Appliances Co., 107 Wn.2d 232, 244-45, 728 P.2d 585 (1986). Plaintiffs' objection does not meet the necessary criterion for proper preservation. We affirm the court's decision to give a contributory fault instruction. IV We next address briefly whether the trial court erred in its calculation of prejudgment interest as part of plaintiffs' recoverable damages. The parties stipulated before trial that prejudgment interest as an aspect of damages would be decided by the trial court rather than the jury. In its memorandum opinion, the trial court entered findings of fact awarding $28,190 in prejudgment interest against each defendant. In their brief, plaintiffs state they previously submitted to the trial court prejudgment figures on their out-of-pocket expenses which amounted to over $30,000 computed at the statutorily mandated rate of 12 percent per annum. See RCW 19.52.020(1). However, plaintiffs neither cite to the record to support this statement, nor have they submitted to this court any alternative calculation of their own which would support remanding this issue to the trial court. As we have previously stated, it is not the function of the trial court or appellate courts to do counsel's thinking and briefing. Orwick v. Seattle, 103 Wn.2d 249, 256, 692 P.2d 793 (1984). We affirm the trial court's prejudgment interest calculation. V We next examine whether the trial court erred by awarding attorney fees to plaintiffs under RCW 19.86.090, Washington's Consumer Protection Act. According to the act, a party who successfully brings an action under it is entitled to recover the costs of bringing the suit along with reasonable attorney fees and costs. RCW 19.86.090. The jury found Austin liable for fraud, conspiracy and Consumer Protection Act violations. The trial court found proof of plaintiffs' conspiracy and fraud claims inextricably related to proof of their Consumer Protection Act claim. After adding up the jury's award, and taking into consideration the 10 percent reduction for plaintiffs' contributory negligence, the court added attorney fees, costs and punitive damages, which resulted in a judgment against Austin of $217,196.70. The court then reduced this judgment by the $150,000 reasonableness amount, which resulted in a final judgment against Austin totaling $67,196.70. Austin argues plaintiffs should not have been awarded any fees or costs under the Consumer Protection Act because they were not the prevailing parties in the action. Austin bases his argument on the fact the $150,000 reasonableness amount exceeded the sum of the judgment against him prior to calculating in attorney fees and costs. We are not persuaded the trial court erred in calculating attorney fees and costs before subtracting the $150,000 offset for several reasons. First, a prevailing party is generally one who receives a judgment in its favor. American Fed. Sav. & Loan Ass'n v. McCaffrey, 107 Wn.2d 181, 195, 728 P.2d 155 (1986) (citing Ennis v. Ring, 56 Wn.2d 465, 473, 353 P.2d 950 (1959)). Plaintiffs prevailed against Austin on fraud, conspiracy and Consumer Protection Act grounds. In addition, the Consumer Protection Act itself provides that one who successfully brings an action under the act is entitled to attorney fees and costs. Plaintiffs were entitled to fees and costs under the act regardless of whether the reasonableness figure rendered at the hearing exceeded the jury's award on these claims. The fact is, plaintiffs prevailed on their Consumer Protection Act claim. We find the trial court properly offset the judgment against Austin after calculating the appropriate attorney fees and costs to which plaintiffs were entitled under RCW 19.86.090. VI The next issue we examine is whether the trial court erred in dismissing some claims against Brink and Austin while allowing others to go to the jury. We first examine claims against Brink which plaintiffs argue on appeal were dismissed in error. Pursuant to a motion filed by Brink, the trial court dismissed plaintiffs' conspiracy, fraud, Consumer Protection Act and securities act claims against him on the grounds of insufficient evidence. In considering a motion for directed verdict, the trial court must view the evidence in the light most favorable to the nonmoving party. Davis v. Globe Mach. Mfg. Co., 102 Wn.2d 68, 73, 684 P.2d 692 (1984). The motion should be granted only if it is determined there is no evidence or reasonable inferences therefrom which would sustain a jury verdict in favor of the nonmoving party. Davis, at 73 (citing Levy v. North Am. Co. for Life & Health Ins., 90 Wn.2d 846, 851, 586 P.2d 845 (1978)). At trial, no evidence was submitted which showed Brink had any contact with the appraisers, or that he was involved in marketing Bargain Boys or in soliciting plaintiffs to make the investment. In fact, the evidence showed Brink met plaintiffs for the first time many months after they made their initial investment. The trial court correctly concluded there was insufficient evidence to sustain a reasonable inference of liability on Brink's behalf for any claims other than those relating to breach of his fiduciary duty as escrow agent/attorney and any foreseeable emotional damage resulting from this breach. We affirm the trial court's dismissal of these claims against Brink. We note Brink himself raises several cross appeals concerning claims against him which were submitted to the jury. However, this court is not obliged to decide all the issues raised by the parties, but only those which are determinative. Hall v. American Nat'l Plastics, Inc., 73 Wn.2d 203, 205, 437 P.2d 693 (1968). Because we affirm the lower court's decision in this case, Brink does not have a judgment against him. Consequently, a decision on Brink's cross appeals would be irrelevant, and we decline to address them. Turning to claims dismissed against Austin, we find the trial court did not err by dismissing plaintiffs' securities act claim against him. The record indicates no evidence was presented at trial which showed Austin had contact with plaintiffs regarding the investment, nor was there evidence that Austin had any involvement in negotiations between Cornerstone and Pacific Home Equities during the search for an investor. Although the trial court did find plaintiffs' investment properly fell within the definition of a security under RCW 21.20.005(12), the court also determined there was insufficient evidence to conclude Austin's actions were a "substantial contributive factor in the sales transaction", Haberman v. WPPSS, 109 Wn.2d 107, 131, 744 P.2d 1032, 750 P.2d 254 (1987), appeal dismissed, 488 U.S. 805 (1988), an element necessary to submit the issue to the jury. We affirm the trial court's dismissal of The Securities Act of Washington claim. Austin himself argues the trial court erred by submitting to the jury plaintiffs' conspiracy claim against him. However, Austin cites no legal authority to support his position. See RAP 10.3(a)(5); Orwick v. Seattle, 103 Wn.2d 249, 256, 692 P.2d 793 (1984). We therefore decline to reach this issue. Nor do we find the trial court erred in submitting the Consumer Protection Act claim against Austin to the jury. A violation of the Consumer Protection Act consists of the following five elements: (1) unfair or deceptive act or practice; (2) occurring in trade or commerce; (3) having an impact on public interest; (4) injury to plaintiff in his or her business or property; and (5) causation. Hangman Ridge Training Stables, Inc. v. Safeco Title Ins. Co., 105 Wn.2d 778, 780, 719 P.2d 531 (1986). Austin alleges that as a matter of law the trial court erred in submitting the Consumer Protection Act claim against him to the jury. His argument is twofold: First, he argues there is insufficient evidence that he committed an unfair or deceptive act or practice; second, he argues no causal link exists between himself and plaintiffs which would support a cause of action. Austin's argument therefore entails an examination of the first and fifth elements under Hangman Ridge. Looking first at whether Austin's procurement of the inflated appraisal from Lamb, Hanson, and Lamb constitutes an unfair or deceptive act or practice, plaintiffs need not show that the act in question was intended to deceive, but only that the act had the capacity to deceive a substantial portion of the public. Hangman Ridge, at 785; McRae v. Bolstad, 101 Wn.2d 161, 167, 676 P.2d 496 (1984). Here, the evidence showed Austin approached Lamb, Hanson, and Lamb and requested an appraisal which would reflect the value of the property as if all repairs had been completed. The evidence also revealed that at the time of the appraisal, the property was in complete disrepair. The evidence also showed the appraisal was used by defendant Weiss of Pacific Home Equity for the purpose of locating a member of the public who would be willing to invest in the property. It is the fact plaintiffs were members of the public who were chosen at random and who were induced by the inflated appraisal into investing in the property that convinces us Austin committed a deceptive act which had the capacity to deceive a substantial portion of the public. See also Travis v. Washington Horse Breeders Ass'n, Inc., 111 Wn.2d 396, 406-07, 759 P.2d 418 (1988). We therefore find the first element satisfied. Having established Austin committed a deceptive act, we next examine the fifth element under Hangman Ridge. Austin asserts that a causal link must exist between plaintiffs and himself in order to satisfy this part of the test. This is incorrect. Instead, the causal link must exist between the deceptive act (the inflated appraisal) and the injury suffered. Travis, at 407; Nordstrom, Inc. v. Tampourlos, 107 Wn.2d 735, 741, 733 P.2d 208 (1987). There is no doubt such a causal link exists in this case. Plaintiffs testified at various stages throughout the litigation that had they not been shown the inflated appraisal, they never would have made the investment which led to the injury now complained of. We do not need to discuss the remaining elements under Hangman Ridge since Austin does not discuss them in his brief. We hold the trial court did not err in submitting the Consumer Protection Act claim against Austin to the jury. VII We next examine whether it was proper for the trial court to instruct the jury that plaintiffs were entitled to emotional damages as part of their recovery under the Consumer Protection Act. Austin argues the trial court should not have allowed the jury to consider emotional damages as recovery under the Consumer Protection Act. In support, Austin cites Keyes v. Bollinger, 31 Wn. App. 286, 640 P.2d 1077 (1982), which held mental distress, embarrassment, and inconvenience are not compensable under the Consumer Protection Act unless accompanied by some pecuniary loss to the person's "business or property". Keyes, at 296. Austin argues plaintiffs submitted no evidence which would indicate any pecuniary loss arose out of their alleged pain and suffering. Although the trial court did instruct the jury that it could award emotional damages under the Consumer Protection Act, we decline to decide whether this was appropriate since the special verdict form which the jury completed indicates that emotional damages may have been awarded under the negligence claim against Brink. Since no objection to the special verdict form itself is raised in this appeal, we affirm the emotional damages award in this case. We also note that relative to the issue of emotional damages, plaintiffs argue the trial court erred in excluding their expert witness from reading the opinion of a third doctor, which appeared in medical records, into evidence. We decline to reach this issue given that plaintiffs' counsel failed to make an offer of proof or otherwise properly object to the court's ruling. In order to obtain appellate review of the trial court's exclusion of evidence, an offer of proof must be made which fairly advises the trial court whether the evidence is admissible. Northern State Constr. Co. v. Robbins, 76 Wn.2d 357, 366, 457 P.2d 187 (1969). VIII The last issues to examine concern attorney fees. We first examine this issue at the trial level. Plaintiffs argue the trial court should have awarded them attorney fees and costs under the doctrine of benefit of the bargain. Plaintiffs also argue the court erred by failing to award fees for paralegal and law clerk time. Whether attorney fees are reasonable is a question of fact to be answered in light of the particular circumstances of each individual case, and in fixing fees the trial court is given broad discretion. In re Renton, 79 Wn.2d 374, 377, 485 P.2d 613 (1971) (citing State v. Roth, 78 Wn.2d 711, 479 P.2d 55 (1971); Tucker v. Mehlhorn, 140 Wash. 283, 248 P. 376 (1926)). The trial court, in its memorandum opinion, carefully considered the factors involved in awarding plaintiffs the appropriate fees and costs. There is substantial evidence indicating the court reduced plaintiffs' requested fees and costs based on a calculated assessment of time spent on claims which were never submitted to the jury. Accordingly, we find the trial court did not abuse its discretion. Defendant Austin also argues the trial court erred in assessing fees against him. He bases his argument on the trial court's alleged error in entering findings of fact relating to the amount of time plaintiffs' counsel spent pursuing claims against him. A finding of fact that is supported by substantial evidence is accepted as a verity on appeal. Burba v. Vancouver, 113 Wn.2d 800, 807, 783 P.2d 1056 (1989). In assessing appropriate fees under the Consumer Protection Act, the trial court must determine the number of hours reasonably expended in the litigation. Bowers v. Transamerica Title Ins. Co., 100 Wn.2d 581, 597, 675 P.2d 193 (1983). The court must then discount hours spent on unsuccessful claims, duplicated effort, or otherwise unproductive time. Bowers, at 597. The total number of hours reasonably expended is then multiplied by the attorney's hourly rate. Bowers, at 597. The trial court can also adjust the fee based on factors unique to the case before it (skill and reputation of the attorney, undesirability of the case, time limitations imposed on the attorney). Bowers, at 597. We are persuaded the trial court's findings of fact are in keeping with the requirements established in Bowers. In particular, the trial court examined plaintiffs' time records pertaining to time spent pursuing claims against all the defendants and then calculated time spent exclusively on claims against Austin. It is worth noting plaintiffs' counsel requested fees substantially higher than those actually awarded by the court. The court then considered the fact plaintiffs were successful on most of the claims against Austin and consequently assessed attorney fees totaling $95,500 against him. We find the trial court properly calculated fees and costs against Austin. Finally, plaintiffs request $35,311.50 in attorney fees on appeal. They base their request on RCW 19.86-.090 (the Consumer Protection Act), which entitles one who successfully litigates a claim under it to attorney fees and costs in connection with bringing the claim. Attorney fees in connection with Consumer Protection Act claims are also recoverable on appeal. Keyes v. Bollinger, 31 Wn. App. 286, 298, 640 P.2d 1077 (1982). We decline to grant plaintiffs' request for attorney fees for several reasons. First, RAP 18.1(c) requires the party requesting attorney fees to file an affidavit and request 7 days in advance of oral argument detailing the expenses incurred and the services performed by counsel. Here, plaintiffs failed to comply with this rule in that they filed their request 2 days before oral argument. Second, the total plaintiffs requested includes attorney time for the entire appeal, which consisted of approximately 13 issues not related to Consumer Protection Act claims. The entire amount requested, therefore, cannot be lumped together and awarded under the Consumer Protection Act. See Nordstrom, at 743-44. Third, the attorney fee declaration plaintiffs filed with this court does not segregate those hours spent pursuing Consumer Protection Act claims from hours spent pursuing the several other issues raised. The request for attorney fees is denied. We affirm the trial court in all respects. Callow, C.J., Utter, Brachtenbach, Dore, Andersen, Durham, and Smith, JJ., and Cunningham, J. Pro Tern., concur. Reconsideration denied October 22, 1990.

Finley, J. In Supreme Court cause No. 42901, Simmons et al., and in Supreme Court cause No. 42870, Fritz et al., the plaintiffs assert that Initiative 276" (approved and enacted into law by a substantial majority of the electorate at the general election in November 1972) is unconstitutional on several grounds. The issues involved in both causes will be discussed, evaluated, and disposed of in this single, consolidated opinion. In cause No. 42901, Simmons et al., Warren Simmons, a port district commissioner of the Port of Olympia, Richard Failor, a director or member of the school board of the North Thurston School District, Joel Gould, a commissioner of Public Utility District No. 1, and Marvin Jamerson, a commissioner of Thurston County Fire District No. 1, jointly filed a complaint in Thurston County Superior Court on January 27, 1973. Therein, the plaintiffs sought judicial declaratory relief under the Washington declaratory judgment act, RCW 7.24. They asked that Initiative 276, Laws of 1973, ch. 1, RCW 42.17, in its entirety, but particularly section 24, RCW 42.17.240 (public disclosure by elected public officials of their financial affairs) be declared uncon stitutional and void, and consequently not binding upon the plaintiffs. Marianne Kraft Norton sought intervention as a defendant ostensibly representing the people of the State of Washington and intervention was granted by the trial court. The Public Disclosure Commission created by Initiative 276 also sought and was granted intervention. In Supreme Court cause No. 42870, Fritz et al., William J. Fritz, a professional lobbyist (employed by the Washington Food Processors Council and others as a lobbyist) and the Washington Food Processors Council, a voluntary association, became plaintiffs individually and in behalf of all others similarly situated. Their joint complaint was filed in the Superior Court of Thurston County on December 26, 1972. The complaint was amended and broadened on January 2, 1973. Plaintiffs asked for and were granted injunctive relief by the trial court restraining and enjoining pendente lite the application and enforcement of Initiative 276. In their complaint, the plaintiffs sought judicial-declaratory judgment relief comparable to that sought by plaintiffs in Simmons et al.; namely, that Initiative 276 (Laws of 1973, ch. 1, codified as RCW 42.17) in its entirety and particularly section 15, RCW 42.17.150, and section 17, RCW 42.17.170, and section 18, RCW 42.17.180 relative to lobbyists and employers of lobbyists — and expenditures relative to legislation- — be declared unconstitutional and void. The League of Women Voters of Washington and the Public Disclosure Commission sought and were granted intervention. Simmons et al. and Fritz et al. were combined and tried jointly with two other cases, Bare v. Gorton et al., Supreme Court cause No. 42879, and Young Americans for Freedom, Inc. v. Gorton et al., Supreme Court cause No. 42878, which cases also questioned Initiative 276 on constitutional grounds. Some facets of the cases are identical and common to all, others are different and unique as to each of the four cases. The combined cases were tried in Thurston County Superior Court, April 23 through May 2, 1973. The trial court rendered á memorandum opinion and subsequently entered, findings of fact, conclusions of law, and judgment holding that section 18, RCW 42.17.180, and section 40(4), RCW 42.17.400(4), the citizens suit for damages or the so-called “bounty hunter” provision of Initiative 276 were invalid. The trial court, however, sustained and upheld Initiative 276 against plaintiffs’ attack on several other grounds of unconstitutionality. Appeals were timely filed in all four lawsuits. Because of statewide public interest in this litigation, the Chief Justice advanced the date for submission and hearing argument in the Supreme Court on Simmons et al. and Fritz et al. A request of counsel in both cases for continuance to an early date in the January 1974 term to allow more time for preparation of briefs was denied by the Chief Justice. Simmons et al. and Fritz et al. were treated as emergent matters and were heard by the court sitting en banc on November 12. Bare et al. v. Gorton, Supreme Court cause No. 42879, and Young Americans for Freedom v. Gorton, Supreme Court cause No. 42878, have been set and will be presented and argued during the next term of the court on January 28,1974. Direct action, legislative or otherwise, by the people, limiting or mandating government or official action to conform more closely with the needs and desires of people seems to be about as ancient and traditional as the history of organized society and government. In fact, the concept and practice of direct legislation by the people antedates recorded history. Shafer, A Teutonic Institution Revived, 22 Yale L.J. 398 (1913). In our modern society many functions of an earlier, New England town meeting variety of pure democracy have been relinquished to the various modem institutions of our representative form of government. It is often forgotten— but it should be remembered as axiomatic — that our representative democracy exists and operates on the basis of its delegated authority and power derived from the people or the electorate of the states and the union. Sovereignty of the populace and the electorate relative to representative or organized government is dramatically evidenced in the phrase “We the people ... do ordain,” contained in the preambles of the constitutions of the United States and the State of Washington. In this regard, it should be noted that where there is public dissatisfaction and/or disenchantment with the functioning or responsiveness of government institutions, to the social needs and desires of the electorate, power unquestionably has been reserved in the people or the electorate to alter the form and substance of the social compact by constitutional amendment. See generally A. DeTocqueville, Democracy in America (J. Mayer ed. 1971). With this as part of our background or heritage relative to representative democracy and government, it is not surprising that in the area of political science and practical politics the concepts of initiative, referendum, and judicial recall became important tenets of the old “populist” movement. It was in the late 19th and the early 20th century that interest was sparked and an active and effective movement developed centering in the newer western states respecting direct legislative action by the electorate. Perhaps this was partly an outgrowth of the “populist” political movement and was partly due to then current popular dis-satisfactions with an apparent lack of responsiveness of government to the social needs and desires felt by the people. The movement led to the adoption of state constitutional amendments providing for direct popular action in the nature of initiative, referendum, and judicial recall processes. The movement and developments in this regard were met with no small degree of vehement opposition by the writers, publicists, and pamphleteers of the day. See, e.g., Littleton, Mob Rule and the Canonized Majority, 7 Const. Rev. 86 (1923). The more conservative elements of the legal profession feared the usurpation of constitutional safeguards and warned “[a] government controlled by hysteria and hasty impulse must inevitably fall.” Campbell, The Initiative and Referendum, 10 Mich. L. Rev. 427, 436 (1912). Perhaps, on occasion, the electorate, in thinking and in action, has taken positions via the initiative or refer endura well in advance of, and perhaps more venturesome, than positions taken by state legislators. However, experience, patience, and maturity of judgment on the part of observers would seem to support a conclusion that the electorate generally has exercised its collective-coordinate legislative judgment and the powers of initiative and referendum with acumen, and common sense as well as with constructive social purpose equal to that of state legislatures. In 1898, South Dakota, followed shortly by Oregon in 1902, became the first state to adopt by constitutional amendment the initiative procedure or machinery. By 1918, 22 states including Washington had adopted similar constitutional provisions. Potter, The “Tools of Democracy ” 24 Case & Com. 610 (1918). It seems reasonably convincing that these developments were an outgrowth of popular discontent with the unresponsiveness of government in dealing with felt social needs of the people. The people of the State of Washington apparently experienced some of the current, popular dissatisfactions with the unresponsiveness of government through the traditional executive, legislative, and judicial modes of procedures, and amendment 7 of the Washington Constitution providing for direct legislation by initiative and referendum was adopted in 1912. In our decision in Gottstein v. Lister, 88 Wash. 462, 153 P. 595 (1915), we reviewed the history of the initiative and referendum movement and upheld amendment 7 against attack, on several grounds, of unconstitutionality. We recognized in State ex rel. Brislawn v. Meath, 84 Wash. 302, 147 P. 11 (1915), the role created for the people by amendment 7 was closely akin to that of a fourth branch of government. We have since recognized that the power of the people via initiative measures extends to the enactment of legislation in a very broad context unless specifically reserved to the legislature by the constitution. State v. Paul, 87 Wash. 83, 151 P. 114 (1915); State v. Hinkle, 156 Wash. 289, 286 P. 839 (1930). In the thirties and early forties, the enactment of the federal social security act, 49 Stat. 620 (1935) and comparable or supplementary state legislation, Laws of 1935, ch. 182, recognized a broad spectrum of public welfare as a responsibility of government. Among other things, old age pensions, health and other benefits were recognized and afforded to senior citizens as a responsibility of government in an organized and previously unparalleled manner by the enactment of coordinated and complementary federal and state legislation. Senior citizens at the time were well organized and an influential group nationally and in many states, including Washington. In our state, the well organized and politically significant Senior Citizens League was dissatisfied with the ambit of benefits of the social security program for senior citizens of our state. Dissatisfaction concerned restrictive or austerity administrative concepts imposed by the 1939 Washington legislature, defining or prescribing basic economic or subsistence needs of social security recipients. Such legislative or administrative definitions of subsistence needs determined and limited the amount of the payments of benefits. See Laws of 1939, ch. 25. Thus, senior citizens and the league set about to modify the restrictions and to gain benefits more amenable to needs than were provided or funded even under the new and greatly improved coordinated federal and state social security program. The senior citizens and the league took their cause to the electorate of Washington via the initiative process. Initiative 141 resulted and was approved by the electorate. There was some surprise and even consternation in both official and in some unofficial circles. It was thought by some that serious policy, fiscal and other mistakes would be the result of the enactment by the people of Initiative 141. Some people even feared that sorely needed federal funds would be lost to Washington because of the lack of conformity of provisions of Initiative 141 with the standards prescribed by the federal social security act. However, Initiative 141 was a clear and direct response of the people, including senior citizens, to what they considered was an inadequate government response to the needs of old-age pensioners in our state. After some serious litigation in the courts and with some necessary interpretative modification, Initiative 141 was accorded legal status and effect. See, e.g., O’Neil v. Department of Social Security, 12 Wn.2d 334, 121 P.2d 396 (1942); Attorney General Opinion, November 30, 1940. This occurred although at the time some aspects of the initiative seemed to be serious mistakes of policy which could significantly disadvantage the real proponents of Initiative 141, as well as the entire citizenry. See generally Comment, Old Age Assistance in Washington, 16 Wash. L. Rev. 95 (1941). It should be obvious that the electorate, via the initiative and direct legislation, can make serious, even grievous, mistakes and errors in judgment regarding matters of basic social policy including unwise and even grievous errors relative to fiscal policy and the solvency of government itself. However, state legislators, acting in their capacity as the duly elected representatives of the people, although well intentioned, are not always infallible in all matters of legislative import. It is certainly not the function or prerogative of the courts to second guess and substitute their judgment at every turn of the road for the judgment of legislators in matters of legislation. So it is, or should be, in the case of direct legislation by the people via the initiative process. Some of the same social and political considerations and factors which prompted numerous state constitutional amendments providing for direct legislation by the people via the initiative and referendum processes were extant at the time Initiative 141 was enacted by the electorate. The same factors and considerations exist today, i.e., public dissatisfactions with government and its imagined or real unresponsiveness to social needs and to the desires and will of the people. This, of course, is coupled with today’s accelerated distrust of public officials and government. These facets of modern life in our society rather obviously contributed significantly to the origin, and adoption by the electorate of Initiative 276. It has been said time and again in our history by political and other observers that an informed and active electorate is an essential ingredient, if not the sine qua non in regard to a socially effective and desirable continuation of our democratic form of representative government. There certainly have been more obstacles in the past to the realization of an informed, active, and participating electorate than at the present time. With the advent of television and its technically proficient development today, and with dramatic improvements in our other modes of dissemination of information about government to the public, the dream and the faith of our founding fathers in an informed, active and participating electorate comes closer to realization today than at any other time in our history. With improved means and methods of communication there is little reason to doubt that a substantial percentage of the public is better informed, more alert, interested, and, in fact, concerned today with matters of government than ever before in our history. We can note particularly that in recent years there has been more dissemination to the public of information as to campaign contributions and expenditures and the use and misuse thereof in the election of public officials. There has been more information about the proper and improper function of lobbying activities, in the decision-making processes of government, and more particularly in the enactment or nonenactment of legislation. There has been an increasing emphasis on the importance of the role of money, funds, and finances in regard to the aforementioned matters. There has been much emphasis on the importance of the availability of public information, public records, the right of the public to know. As a culmination of public interest and concern along the lines indicated, and due to the availability of the initiative process in our state, the electorate adopted Initiative 276 at the election in 1972 by a substantial majority of the votes cast. A pertinent part of this background is illustrated by the interesting account of how Initiative 276 came about in an excerpt from the brief of appellant Marianne Kraft Norton: A. The People Legislate for Open Government. In the spring of 1971, following the close of the 1971 state legis lative session, various citizens groups concerned about the problem of the impact and influence of money and property on governmental decision making formed a common purpose organization called the Coalition for Open Government (“COG”) to explore the possibility of drafting an initiative to solve this problem by requiring public disclosures of campaign financing, lobbyist registration and reporting, elected officials’ financial affairs and public records affording to the people “the public’s right to know.” In the summer and fall of 1971, COG undertook the drafting of such an initiative measure and in order to generate full public information about it, COG participated in public meetings, solicited input from member citizen organizations and others, and distributed press releases about the initiative to news media. In November and December of 1971 COG mailed to organizations and representative concerned citizens (including all members of the state legislature) 3,000 copies of its letter . . . describing its approach to solving the above-described problem, and requesting responses from the addressees. In February of 1972 with its February 8, 1972 letter . . . COG made another appeal to the state legislature, then in extraordinary session, for a law to rectify suspicions by citizens about the effect of money on the political and governmental processes, a law to correct abuses in the system frustrating “the people’s right to know.” When the legislature failed to respond with what COG would have considered adequate legislation, COG proceeded to file the initiative in late March 1972. A successful signature drive ensued. The campaign in the summer and fall . . . involved the distribution of materials, . . . more public meetings, with endorsements by government officials, organized labor, citizens organizations including political party groups and editorial support. 2. American Association of University Women (3,200 members in Washington State Chapter, St. 415b); League of Women Voters of Washington (3,000 members, St. 415b); the Municipal League of Seattle and King County (3,500 to 4,000 members, St. 357); Common Cause (4,500 members in Washington, St. 415b); Young Republicans of King County (200-300 members, St. 358); The Washington Environmental Council (2,000-4,000 members, St. 358); the Washington State Council of Churches; the Seattle Press Club; CHEC-Choose an Effective City Council (approximately 1,000 members, St. 358); Seattle-King County Bar Association, Young Lawyers Section. The reporting, public disclosure, public information and other requirements of Initiative 276 are new, novel, and, in a comparative sense) most extensive and very, very detailed. Compliance with them will require a considerable degree of painstaking care and effort on the part of the candidate for public office, public officials, lobbyists, employers of lobbyists, and others. The requirements of section 24 will necessitate not only disclosure of financial facts and information of a very personal and private nature insofar as individual public officials are concerned but also mandates the disclosure of financial information heretofore regarded as personal and private as to spouses, business and professional partners or associates of individual public officials. The latter kind of public disclosure of financial information may prove to be highly undesirable from a personal as well as a business or professional standpoint on the part of spouses, business and professional associates of the individual public officials involved. It may- very well prove to be the case that spouses, business and professional associates of public officials may not only prefer not to disclose but may refuse to disclose, not for ulterior, unethical, or illegal reasons but for purely personal and business reasons the required critical information as to their financial affairs. It was urged in briefs and argument, and it is not inconceivable, that many very dedicated, highly motivated public officials of unquestionable honesty, integrity and rectitude may simply not be able to disclose the type of information required by Initiative 276 relative to spouses and associates. Furthermore, it has been noted that such public officials may have to choose between one or the other of two unpleasant and, perhaps undesirable alternatives. (1) They would either have to terminate business, professional, or perhaps, even marital relationships, or (2) they would be forced to resign their office, to forego and give up dedicated and meaningful careers as public officials and servants. There may be some thin difference between possibilities and probabilities in this regard. But, Initiative 276 is not without the possibility of some real problems which may ultimately produce negative rather than affirmative results insofar as the best interests of the public are concerned. Hence, the well-intentioned motives of the proponents and of those who voted for Initiative 276 may prove to be self-defeating. In other words, improvement in the quality of government may not be enhanced, but could be seriously discounted or diminished despite the well-intentioned purposes and desires of those who supported and approved Initiative 276. Obviously we are not speaking of certainties or even of probabilities but possibilities. In the face of such possibilities, we are convinced that two things must be said and emphasized. First, the electorate of our state in legislating directly by the initiative route, as in the case of duly elected legislative representatives, is not infallible. They, even as legislators, must be accorded some margin of error as to matters of policy-judgment and in terms of making legislative mistakes. Second, it is not the prerogative nor the function of the judiciary to substitute what they may deem to be their better judgment for that of the electorate in enacting initiatives or for the judgment of duly elected legislators unless the errors in judgment clearly contravene state or federal constitutional provisions. For the reason indicated and discussed with more particularity hereinafter, we are convinced that the trial court must be reversed in voiding section 40 (4) and section 18 of Initiative 276 and must be affirmed in sustaining the constitutionality of other provisions of Initiative 276 under attack on grounds of unconstitutionality in Simmons et al. and in Fritz et al. Washington Constitution, Article 2, Section 19 The threshold question in both Simmons and Fritz involves article 2, section 19 of the state constitution which reads: Bill To Contain One Subject. No bill shall embrace more than one subject, and that shall be expressed in the title. The challengers of Initiative 276 basically contend that article 2, section 19 applies to initiative measures with the same force and import as in the case of enactments of the state legislature. From this thesis, the challengers argue that Initiative 276 (1) embraces more than one subject, and (2) that the subject matter within the body of the initiative is not expressed in the ballot title of the initiative. On the basis of these assumptions they conclude that the initiative violates article 2, section 19, and consequently it is unconstitutional and void. The reasoned decision of this court in Senior Citizens League v. Department of Social Security, 38 Wn.2d 142, 228 P.2d 478 (1951), clearly held that article 2, section 19 is not applicable to initiative measures. In this connection, the court explicitly recognized the limited application of the constitutional article to the legislative titles of bills or laws enacted by the state legislature. Because Initiative 276 originated with the signing and filing of petitions by the voters of Washington rather than through any action by the legislature, the initiative had no legislative title. It did have, however, a ballot title provided by the Attorney General’s Office. The adequacy of ballot titles is specifically governed by the provisions of RCW 29.79.040. These provisions mandate the procedures to be followed by the Attorney General in providing a legally sufficient ballot title for initiative measures. RCW 29.79.040 provides as follows: Ballot title — Formulation by attorney general. Within ten days after the receipt of an initiative or referendum measure the attorney general shall formulate therefor and transmit to the secretary of state a statement of not to exceed one hundred words, bearing the serial number of the measure. The statement may he distinct from the legislative title of the measure, and shall express, and give a true and impartial statement of the purpose of the measure; it shall not be intentionally an argument, nor likely to create prejudice, either for or against the measure. In addition to such statement, the attorney general shall also prepare a caption, not to exceed five words in length, to permit the voters readily to identify the initiative or referendum measure and distinguish it from other questions on the ballot. This caption and the statement together shall constitute the ballot title. The ballot title formulated by the attorney general shall be the ballot title of the measure unless changed on appeal. (Italics ours.) No contention is made by the challengers of Initiative 276 that its ballot title does not comply with the above provisions of RCW 29.79.040. We decline to overrule and strike down the well-considered en banc decision of the court in Senior Citizens League v. Department of Social Security, supra. We adhere to the precedent established by that case that article 2, section 19 does not apply to ballot titles of initiative measures. We think this resolves and should end this aspect of the appeals in Simmons and in Fritz. Assuming arguendo, however, that the provisions of article 2, section 19 are applicable, we would have no difficulty in holding that the ballot title and subject matter of Initiative 276 comply with the twofold requirements of article 2, section 19. The ballot title of Initiative 276 as drafted per the Attorney General pursuant to RCW 29.79.040 reads as follows: An Act Relating to campaign financing, activities of lobbyists, access to public records, and financial affairs of elective officers and candidates; requiring disclosure of sources of campaign contributions, objects of campaign expenditures, and amounts thereof; limiting campaign expenditures; regulating the activities of lobbyists and requiring reports of their expenditures; restricting use of public funds to influence legislative decisions; governing access to public records; specifying the manner in which public agencies will maintain such records; requiring disclosure of elective officials’ and candidates’ financial interests and activities; establishing a public disclosure commission to administer the act; and providing civil penalties. The challenging parties assert that the body of the initiative covers a “multitude of subjects” including: (1) disclosure of campaign financing; (2) limitations on campaign spending; (3) regulation of lobbying activities; (4) regulation of grass roots educational activities; (5) disclosure of financial affairs of elected officials; and (6) public inspection of public records. We do not agree that the initiative covers a multiplicity of subjects or subjects that are not reasonably related. On the contrary, each of the subtopics of Initiative 276 bears a close interrelationship to the dominant intendment of the measure. We have repeatedly held that where the title embraces a general subject it is not violative of the constitution even though the general subject contains incidental subjects.'All that is required is that there be some “rational unity” between the general subject and the incidental subdivisions. Kueckelhan v. Federal Old Line Ins. Co., 69 Wn.2d 392, 418 P.2d 443 (1966); Robison v. Dwyer, 58 Wn.2d 576, 364 P.2d 521 (1961). Water Dist. 105 v. State, 79 Wn.2d 337, 341, 485 P.2d 66 (1971). In short, we are satisfied that the interrelated sections easily meet the nexus requirements of the “rational unity” test. In our opinion, the general subject area of Initiative 276 was one reasonably well known and understood by the public. We think that the generic subject of Initiative 276 —openness in government — necessarily encompasses the public accountability of incumbents of public office and candidates seeking to represent the people in public office as well as lobbyists and their employers seeking to guide or direct legislation. Hence, the “rational unity” or coalescence of the initiative’s subtopics could be expressed as a general subject or subject area delineating or prescribing more realistic standards and controls, better and more available public information and records regarding election campaigns, the functions of government, involving the activities and societal responsibilities of candidates for public office, public officials, lobbyists and others actively engaged in the processes of government. Accord, Stein v. Howlett, 52 Ill. 2d 570, 289 N.E.2d 409 (1972), cert. denied, 412 U.S. 925 (1973) (Illinois public disclosure law, discussed infra); Madison Nat’l Bank v. Newrath, 261 Md. 321, 275 A.2d 495 (1971) (Uniform Commercial Code with its divers subject matter held to satisfy Maryland’s one subject rule). The second requirement of article 2, section 19, that the subject of the bill be expressed in its title, is clearly met. The adequacy of legislative titles in terms of the provisions of article 2, section 19 was addressed in Maxwell v. Lancaster, 81 Wash. 602, 607, 143 P. 157 (1914). In Lancaster the court stated, “[i]f the subject of the act can be reasonably gathered from reading the title as a whole, the subject is sufficiently expressed therein.” The lengthy, detailed and explicit ballot title given Initiative 276 by the Attorney General’s Office leaves no doubt in our minds that a reasonably careful and intelligent reader would be informed as to what was covered or embraced in the body of Initiative 276. Thus, assuming for argument’s sake that article 2, section 19 is applicable to Initiative 276 we would conclude hypothetically that the initiative and its title would be in compliance. Initiative Section 24 (RCW 42.17.240) In the Simmons case, arguments of respondents against Initiative 276 focus primarily upon the constitutionality of section 24 which is set out in full in the footnote herein. Respondent’s contentions that section 24 is unconstitutional are essentially as follows: (1) the section infringes upon a fundamental right of privacy; (2) the section is impermissibly overbroad; (3) the section impinges upon a candidate’s right to seek and hold office, and (4) the right of the electorate to vote for the candidate of its choice. The bold thrust of Initiative 276 in mandating disclosure of the financial affairs of elected officials appears to be unprecedented in either state or federal legislation. In an ideal sense, public disclosure legislation should not totally disregard the right of privacy of candidates for office and incumbent elected public officials whose compliance is required by such legislation. Furthermore, in the abstract, there should be an optimum balance between the rights of such candidates and elected officials and the right of the public to know or to be informed about those who govern in their behalf. In its declaration of policy, Initiative 276 notes as its goal the achievement of such a balance. See section 1 (10) - (11), RCW 42.17.010 (10) - (11). Some ambivalence, line drawing or balancing as to conflicting values and opposing interests usually can be tolerated or subsumed with some ease and grace in the realm of the abstract or the purely philosophical. But the task is a most sensitive, difficult, and at times a well nigh impossible one, in the day-to-day — at times — do or die world of practical, political, and social realities. For reasons indicated hereinafter, we have some doubts as to whether the difficult task of judicial line drawing or balancing is required as to any conflicting values and opposing interests involved in section 24. If some judicial line drawing or balancing must be done, we are convinced it must be done in the direction or in support of the interests of the people and the electorate regarding the purport of section 24. Considering today’s political and social realities and the purport of section 24, we are convinced the sum of these circumstances show very clearly a legitimate or perhaps even a compelling state or societal interest of the people and the electorate in enacting Initiative 276, including section 24 thereof. The right of privacy, as with other rights, is not an absolute. There are inherent limitations of a unique and significant nature regarding any claim to the right of privacy on the part of candidates and incumbent public officials. It seems almost too obvious for argument that the candidate who enters the public arena voluntarily presents or thrusts himself forth as a subject of public interest and scrutiny. While there are many intimate details which may be beyond the scope of legitimate public interest, information which clearly and directly bears upon the qualifica tions and the fitness of those who seek and hold public office is unquestionably in the public domain. First amendment freedom of the press has been dramatically construed to encourage and protect public discourse regarding the conduct of public officials. In New York Times Co. v. Sullivan, 376 U.S. 254, 11 L. Ed. 2d 686, 84 S. Ct. 710, 95 A.L.R.2d 1412 (1964), the Supreme Court of the United States quoted with approval the language of Sweeney v. Patterson, 128 F.2d 457 (D.C. Cir.), cert. denied, 317 U.S. 678 (1942), in which the circuit court had approved the dismissal of a congressman’s libel suit against a newspaper, “Cases which impose liability for erroneous reports of the political conduct of officials reflect the obsolete doctrine that the governed must not criticize their governors. . . . The interest of the public here outweighs the interest of appellant or any other individual. The protection of the public requires not merely discussion, but information.” (Italics ours.) New York Times Co. v. Sullivan, supra at 272. In Rosenbloom v. Metromedia, Inc., 403 U.S. 29, 41-42, 29 L. Ed. 2d 296, 91 S. Ct. 1811 (1971), the court further elucidated the fundamental nature of the public’s right to know: Self-governance in the United States presupposes far more than knowledge and debate about the strictly official activities of various levels of government. The commitment of the country to the institution of private property, protected by the Due Process and Just Compensation Clauses in the Constitution, places in private hands vast areas of economic and social power that vitally affect the nature and quality of life in the Nation. Our efforts to live and work together in a free society not completely dominated by governmental regulation necessarily encompass far more than politics in a narrow sense. . . . “Freedom of discussion, if it would fulfill its historic function in this nation, must embrace all issues about which information is needed or appropriate to enable the members of society to cope with the exigen cies of their period.” Thornhill v. Alabama, 310 U.S. 88, 102 (1940). . . . [L]ater decisions have disclosed the artificiality, in terms of the public’s interest, of a simple distinction between “public” and “private” individuals or institutions: “Increasing in this country, the distinctions between governmental and private sectors are blurred. . . . In many situations, policy determinations which, traditionally were channeled through forjnal political institutions are now originated and implemented through a complex array of boards, committees, commissions, corporations, and associations, some only loosely connected with the Government. This blending of positions and power has also occurred in the case of individuals so that many who do not hold public office at the moment are nevertheless intimately involved in the resolution of important public questions. . . . “. . . Our citizenry has a legitimate and substantial interest in the conduct of such persons, and freedom of the press to engage in uninhibited debate about their involvement in public issues and events is as crucial as it is in the case of ‘public officials.’ ” Curtis Publishing Co. v. Butts, 388 U.S. 130, 163-164 (1967) (Warren, C. J., concurring in result). The crux of evaluating the capabilities and motivations of any candidate for public office or incumbent public official is information bearing upon fitness for office. We need not fear that any candidate or official may not apprise the electorate of his capabilities. Opponents, of course, will emphasize any lack of ability. Nonetheless, other factors that may influence the electorate’s evaluative processes are not always disclosed in the heat of a campaign and less often when the official has taken office. We accept as self-evident the suggestion in the brief of intervenors (The League of Women Voters) that the right to receive information is the fundamental counterpart of the right of free speech. The broad protections accorded the speech of public officials, Bond v. Floyd, 385 U.S. 116, 17,L. Ed. 2d 235, 87 S. Ct. 339 (1966), and the criticism of such speech, Garrison v. Louisiana, 379 U.S. 64, 13 L. Ed. 2d 125, 85 S. Ct. 209 (1964), are essential to ensure “that debate on public issues should be uninhibited, robust, and wide-open . . .” New York Times Co. v. Sullivan, supra at 270. The constitutional safeguards which shield and protect the communicator, perhaps more importantly also assure the public the right to receive information in an open society. Time, Inc. v. Hill, 385 U.S. 374, 17 L. Ed. 2d 456, 87 S. Ct. 534 (1967). Freedom of speech without the corollary —freedom to receive — would seriously discount the intendment, purpose and effect of the First Amendment. Initiative 276 seeks to enlarge the information base upon which the electorate makes its decisions. The right of the electorate to know most certainly is no less fundamental than the right of privacy. When the right of the people to be informed does not intrude upon intimate personal matters which are unrelated to fitness for public office, see Griswold v. Connecticut, 381 U.S. 479, 14 L. Ed. 2d 510, 85 S. Ct. 1678 (1965), the candidate or officeholder may not complain that his own privacy is paramount to the interests of the people. Discernment between the ambit of private and personal affairs is not an easy task. As stated in Garrison v. Louisiana, 379 U.S. 64, 77, 13 L. Ed. 2d 125, 85 S. Ct. 209 (1964): [A]ny criticism of the manner in which a public official performs his duties will tend to affect his private, as well as his public, reputation. The New York Times rule is not rendered inapplicable merely because an official’s private reputation, as well as his public reputation, is harmed. The public-official rule protects the paramount public interest in a free flow of information to the people concerning public officials, their servants. To this end, anything which might touch on an official’s fitness for office is relevant. New personal attributes are more germane to fitness for office than dishonesty, malfeasance, or improper motivation, even though these characteristics may also affect the official’s private character. The scope of public interest and the public’s right to know was further emphasized in Monitor Patriot v. Roy, 401 U.S. 265, 274, 28 L. Ed. 2d 35, 91 S. Ct. 621 (1971), when the court stated: The principal activity of a candidate in our political system, his “office,” so to speak, consists in putting before the voters every conceivable aspect of his public and private life that he thinks may lead the electorate to gain a good impression of him. A candidate who, for example, seeks to further his cause through the prominent display of his wife and children can hardly argue that his qualities as a husband or father remain of “purely private” concern. And the candidate who vaunts his spotless record and sterling integrity cannot convincingly cry “Foul!” when an opponent or an industrious reporter attempts to demonstrate the contrary. The provisions of section 24 do not sweep so broadly as to be constitutionally impermissible. Section 24 does not cavalierly mandate a picayune itemization of personal affairs, but requires only the listing of financial data and relationships with amounts to be designated, not in specific amounts, but by general categories of varying monetary degree. See section 24, supra. Further, we note that should the requirements of section 24 impose undue hardship upon any individual, the Public Disclosure Commission is empowered to grant a waiver. See section 37 (9), RCW 42.17.370 (9). The supreme courts of California and Illinois have passed upon the constitutionality of public disclosure measures in those states; but, the unique nature, breadth and complexity of Initiative 276 discounts the precedential value of those decisions in some considerable degree. In Carmel-by-the-Sea v. Young, 2 Cal. 3d 259, 466 P.2d 225, 85 Cal. Rptr. 1 (1970), a public disclosure enactment was struck down as unconstitutional. Among other distinguishing features, the California case involved a state statute which compelled extensive disclosure by nonelected state employees. Thus, civil servants who had not taken the volitional step of entering the elective process were to be subjected to scrutiny equal to that of elected officials. The California court emphasized and held that this intrusion into the lives of public employees was an unwarranted and unconstitutional invasion of privacy. The Illinois Supreme Court in Stein v. Howlett, 52 Ill. 2d 570, 289 N.E.2d 409 (1972), cert. denied, 412 U.S. 925 (1973), distinguished Carmel by interpreting a newly enacted Illinois government ethics act upon the basis of a unique provision in the 1970 Illinois constitution. The Illi nois court reasoned that this constitutional provision, which ordered disclosure of economic data by all candidates and officeholders, was clear evidence of a recent popular mandate favoring disclosure, and constituted authority to sustain the Illinois disclosure legislation. The salient precedential value of the Stein decision was the court’s refusal to find the provisions of the Illinois statute either (1) an unwarranted intrusion into the privacy of candidates or public officeholders, or (2) an impermissible infringement upon the right to seek office or to vote for the candidate of one’s choice. With regard to the ambit of section 24 of Initiative 276, we subscribe to the rationale and holding of the Illinois Supreme Court. The respondents argue that section 24 suffers from unconstitutional overbreadth. Obviously, the extensive reporting required by section 24 may result in disclosures of information not unequivocally related to the public office in question. Respondents assert the initiative does not sufficiently relate required disclosure to the nature of the office. It would be, however, an insurmountable legislative task to tailor disclosures to each of literally a myriad of public posts, and an anomaly to require each individual to make a personal determination as to what items of his financial affairs would be relevant. The all-inclusive, generic terms of section 24 are not irrationally unrelated to the legitimate purpose they are to achieve. We, therefore, decline the invitation to find the section unconstitutionally overbroad. Accord, Stein v. Howlett, supra. Our holding that section 24 is not repugnant to the right of privacy or other constitutional rights of public officials, does not signify we would personally endorse the philosophy or the mechanics of that section if other alternatives were offered. It may well be that application and enforcement of the section will have negative, as well as affirmative social results. In any event, it is not for this court to substitute its judgment in matters of social or political policy for those of the people and the society it serves. Respondents earnestly warn of statewide wholesale resigna tions by dedicated, scrupulously honest, competent public officials if section 24 is upheld. In examining the extensive disclosure requirements of the section, we note the requirement of exhaustive, burdensome reporting that may befall some individuals. Section 24 may impose an extraordinary impact upon those who are engaged both in the public service and in private business or the professions, and whose associates and immediate family members are subject to disclosure. As heretofore mentioned, the partners, business associates and spouses of public officials may refuse to make the necessary disclosures. Faced with this dilemma as to extensive disclosure of financial affairs in order to continue in office, an unpredictable number of elected officials may resign and forego public service. Thus, again as mentioned heretofore, section 24 may foreclose the candidacy or continued office holding of well qualified citizens of impeccable integrity. It would indeed be sadly ironic if the laudable purposes of Initiative 276 were to precipitate significant or widespread resignations from public office of many outstanding, honest and competent officials. Irrespective of how ill advised we or others may think some portions of section 24 may be, it is within the power of the people to prescribe informational standards or disclosure qualifications relative to public office. In this regard, we noted that the waiver of compliance authorized by section 37(9), RCW 42.17.370(9), may provide a safety valve to ensure that inequities do not frustrate the purpose of the measure. It is to be hoped that some of the fears expressed by respondents are unwarranted. If not, constitutional amendment 26 provides the mechanism to remedy undesirable social results which may flow from application and enforcement of section 24 or other provisions of Initiative 276. In fact, at the coming January 1974 session, the legislature may modify or change any demonstrably unworkable, undesirable, or offensive provisions by a two-thirds vote of each house. Furthermore, after the initiative has been on the books for 2 years it may be changed by a simple majority vote of each house. In addition, the people could again resort to the initiative process as they deem it necessary to alter and improve upon the provisions of Initiative 276 as their legislative product. Initiative Sections 15,17 and 18 — Lobbying Activities In Fritz, the gravamen of the appellants’ complaint centers upon the provisions of Initiative 276 which affect lobbying activities. Specifically, these are section 15, RCW 42.17.150, which requires detailed registration by lobbyists; section 17, RCW 42.17.170, which includes extensive reporting of lobbying activities; and section 18, RCW 42.17.180, under which the employers of lobbyists are obligated to report compensation paid directly or indirectly to candidates or public officials. Appellants earnestly contend that their First Amendment right to petition government as extended to the states by the Fourteenth Amendment is violated by the registration and reporting requirements of sections 15, 17, and 18. With regard to section 18, the trial judge reasoned that compliance was impossible, or, at the least, unduly burdensome. He also reasoned that section 18 was overly broad, and bore no relationship to the legitimate purposes of the act. Hence, the trial court held that section 18 unconstitutionally infringed upon the right to petition. The trial court found no errors of constitutional dimension in the provisions of sections 15 and 17. The First Amendment right of the people to “petition the government for a redress of grievances” is one of the cornerstones of our constitutional democracy. Since its ancestral beginnings as an obscure provision in the Magna Carta, the right to petition has been commonly understood to be a procedure of an open and public nature. The history of England includes picturesque exercises of this right including a Chartist petition in 1842 six miles in length which had to be broken into bundles before it could be presented to the House of Commons. The right to petition was incorporated into many of the legislative pronouncements of the rebelling colonies and in the Declaration of Independence. In the 1830’s, the Congress was deluged with petitions calling for the abolition of slavery. In response, the House adopted a standing rule that all petitions of this nature would be tabled without public notice, or action of any kind. John Quincy Adams vehemently fought and won repeal of the rule maintaining that not even “the most abject despotism” would “deprive the citizen of the right to supplicate for a boon, or to pray for mercy.” Other notable examples of open and well publicized petitioning in the history of the United States include: the deployment of unemployed armies of petitioners by General Coxey of Ohio in 1894, the march for bonuses by veterans in 1932, and the dramatic marches of the poor led by Dr. King and Reverend Abernathy in the past decade. We note these examples to emphasize the intrinsically nonsecretive and public nature of the historic development of the right to petition. 11 Encylopaedia of the Social Sciences 98-101 (E. Seligman ed. 1937). That right to petition, of course, is not limited to mass demonstrations, highly publicized in newspaper headlines and in television news reports. In sharp contrast, lobbying can be a far more subtle, unpublicized, and we surmise a more effective method of petitioning the government. The profound effect that lobbying may have upon the legislative processes is tacitly recognized in common references to lobbyist activities as the “third house” or the “fifth estate.” We take special and emphatic notice of the fact that lobbyists perform important and constructive functions in communicating the wishes of the interests they represent to the appropriate organs of government. In our opinion, the role of the lobbyist in openly and appropriately communicating with government in regard to legislation and other related functions of government is clearly assured and protected by the First Amendment right to petition government. The purpose and the function of sections 15 and 17 of Initiative 276 are not to restrict or prohibit appropriate and protected communications of the lobbyist. Contrariwise, the effect of these sections of the initiative only requires that one who receives compensation and/or expends funds in lobbying must register and openly and publicly report the nature and extent of his activities in this particular regard. By narrowing its scope to the influence of money upon governmental processes, Initiative 276 avoids unconstitutional restrictions upon the ambit of the guarantees of the First Amendment. Consistent with the intendment of the initiative to avoid possible encroachment upon the right to petition, section 16, RCW 42.17.160, excludes from coverage: (1) any person who simply appears in a public session of a legislative committee or the hearings of public agencies; (2) the press; and (3) one who lobbies without compensation and without making expenditures on behalf of public officeholders. Thus, in this especial and additional manner, the initiative seeks to avoid impingement upon First Amendment guar antees, but requires and implements the disclosure óí information which may aid the receiver and the general public in evaluating the influence of money upon legislative decision-making and related functions of government. Discussion of the compensatory and pecuniary aspects of the lobbying profession may be severed from its protected communication aspects as stated by the United States Court of Appeals for the First Circuit, The First Amendment does not provide the same degree of protection to purely commercial activity that it does to attempts at political persuasion. . . . Moreover, the First Amendment does not prevent government from adopting reasonable rules for regulating the conduct of those who seek its favor. George R. Whitten, Jr., Inc. v. Paddock Pool Builders, Inc., 424 F.2d 25, 33 (1st Cir. 1970). Hence, where one is engaged professionally and for compensation to persuade or influence the decisions of others as to matters affected with a public interest, he may be subject to extensive disclosure requirements. As an example, an attorney engaging in “persuader” activities, as defined by the Labor-Management Reporting and Disclosure Act of 1959, 29 U.S.C.A. § 401 et seq., must report not only receipts and disbursements regarding the business of the persuader’s clients, but also his receipts and related disbursements for all labor related services. Price v. Wirtz, 412 F.2d 647 (5th Cir. 1969). The pecuniary feature of magazine sales brought that activity within the regulatory power of the state in Breard v. Alexandria, 341 U.S. 622, 642, 95 L. Ed. 1233, 71 S. Ct. 920, 35 A.L.R.2d 335 (1951), wherein the United States Supreme Court stated, We agree that the fact that periodicals are sold does not put them beyond the protection of the First Amendment. The selling, however, brings into the transaction a commercial feature. The First and Fourteenth Amendments have never been treated as absolutes. Freedom of speech or press does not mean that one can talk or distribute where, when and how one chooses. Rights other than those of the advocates are involved. By adjustment of rights, we can have both full liberty of expression and an orderly life. (Footnotes omitted.) In State v. Conifer Enterprises, 82 Wn.2d 94, 100, 508 P.2d 149 (1973), we upheld a statute prohibiting the paid solicitation of initiative signatures, saying: Clearly, the solicitation of signatures for an initiative petition is political expression falling within the ambit of the freedom of speech guaranteed by the First Amendment. But RCW 29.79.490(4) does not make it unlawful for respondents to solicit signatures on an initiative petition. Nor does it forbid others from doing likewise at respondents’ request. The statute only makes it unlawful for the respondents to pay (or offer to pay) other persoris to solicit signatures. This narrow proscription does not abridge respondents’ freedom of speech since such payment bears no necessary relationship to their exercise of that right. The United States Supreme Court firmly established the power of the government to require registration and reporting of lobbyists’ activities in the landmark decision of United States v. Harriss, 347 U.S. 612, 625, 98 L. Ed. 989, 74 S. Ct. 808 (1954). In Harriss, which involved a criminal prosecution for failure to register and report under the Federal Regulation of Lobbying Act, the court recognized that: Present-day legislative complexities are such that individual members of Congress cannot be expected to explore the myriad pressures to which they are regularly subjected. Yet full realization of the American ideal of government by elected representatives depends to no small extent on their ability to properly evaluate such pressures. Otherwise the voice of the people may all too easily be drowned out by the voice of special interest groups seeking favored treatment while masquerading as proponents of the public weal. This is the evil which the Lobbying Act was designed to help prevent. Toward that end, Congress has not sought to prohibit these pressures. It has merely provided for a modicum of information from those who for hire attempt to influence legislation or who collect or spend funds for that purpose. It wants only to know who is being hired, who is putting up the money, and how much. (Footnote omitted.) The aim of the civil provisions of Initiative 276 is no different. Cf. United States v. Rumely, 345 U.S. 41, 97 L. Ed. 770, 73 S. Ct. 543 (1953). See generally Fleishman, Freedom of Speech and Equality of Political Opportunity: The Constitutionality of the Federal Election Campaign Act of 1971, 51 N.C.L. Rev. 389 (1973); Comment, Public Disclosure of Lobbyists’ Activities, 38 Fordham L. Rev. 524 (1970). Initiative 276, as we have noted, was created by the people for the expressed purpose of fostering openness in their government. To effectuate this goal, it is important that disclosure be made of the interests that seek to influence governmental decision making. Thus, the requirements of registration under section 15 and reporting under sections 17 and 18 are designed to exhibit in the public forum the identities and pecuniary involvements of those individuals and organizations that expend funds to influence government. Informed as to the identity of the principal of a lobbyist, the members of the legislature, other public officials and also the public may more accurately evaluate the pressures to which public officials are subjected. Forewarned of the principals behind proposed legislation, the legislator and others may appropriately evaluate the “sales pitch” of some lobbyists who claim to espouse the public weal, but, in reality, represent purely private or special interests. The electorate, we believe, has the right to know of the sources and magnitude of financial and persuasional influences upon government. The voting public should be able to evaluate the performance of their elected officials in terms of representation of the electors’ interest in contradistinction to those interests represented by lobbyists. Public information and the disclosure required by section 24, supra, coupled with that required of lobbyists and their employers may provide the electorate with a heretofore unavailable perspective regarding the role that money and financial influence play in government decision making and other functions performed by public officials. Actually, the mosaic of Initiative 276 is designed to reveal the flow of expenditures incurred in efforts to guide and direct government. The removal of any one element would conceivably leave a loophole area for exploitation by self-serving special interests. Section 18 concerns the reporting of monies paid directly or indirectly to candidates and to public officials. This provision inhibits the flow of secret money from an inappropriate special interest source to legislators or other government officials for inappropriate special interest purposes. Hence, there is a rational nexus between a legitimate societal purpose of the electorate and the requirements of section 18. We cannot concur with the finding of the trial court that compliance with section 18 is impossible. We can agree that the requisite collation of expenditures with the names of public officials may be somewhat voluminous, detailed, and burdensome. It would seem that in most instances the degree of difficulty would escalate in relation to the size of a particular legislative lobbying program. We note that the appellants have made no attempt to apply for a waiver under the hardship provisions of section 37(9), RCW 42.17.370(9). The burden of collation is eased to some degree by the compilation of a list of public officials kept current by the Public Disclosure Commission. WAC 390-04-080, -090. Further, under its power to implement the provisions of the act, the regulations of the commission have provided that an omission in reporting the name of a public official will be deemed presumptively due to an unreasonable hardship. WAC 390-04-100. In our opinion, promulgation of such regulations would seem to be within the commission’s delegated authority. Barry & Barry, Inc. v. Department of Motor Vehicles, 81 Wn.2d 155, 500 P.2d 540 (1972). Since appellant Washington Food Processors Council has made no effort to exhaust its administrative reme dies, we are not impressed by its efforts to circumvent those procedures here. State ex rel. Association of Wash. Indus. v. Johnson, 56 Wn.2d 407, 353 P.2d 881 (1960). We are convinced the decision of the trial court should be affirmed as to initiative sections 15 and 17 and reversed as to section 18. Initiative Section 40 (4) — Citizen Suits Section 40(4), RCW 42.17.400(4) of Initiative 276 provides as follows: Sec. 40. Enforcement. . . . (4) Any person who has notified the attorney general in writing that there is reason to believe that some provision of this act is being or has been violated may himself bring in the name of the state any of the actions (hereinafter referred to as a citizen’s action) authorized under this act if the attorney general has failed to commence an action hereunder within forty days after such notice and if the attorney general has failed to commence an action within ten days after a notice in writing delivered to the attorney general advising him that a citizen’s action will be brought if the attorney general does not bring an action if the person who brings the citizen’s action prevails, he shall be entitled to one-half of any judgment awarded, and to the extent the costs and attorney’s fees he has incurred exceed his share of the judgment, he shall be entitled to be reimbursed for such costs and fees by the State of Washington: Provided, that in the case of a citizen’s action which is dismissed and which the court also finds was brought without reasonable cause, the court may order the person commencing the action to pay all costs of trial and reasonable attorney’s fees incurred by the defendant. The trial court’s reasoning was that section 40 (4) exposes potential defendants to abusive or capricious prosecution. Largely on this basis the trial court concluded that section 40(4) deprives appellants of due process and is therefore unconstitutional. Section 40 (4) of the initiative is merely a codification of the ancient common-law “qui tam” procedure or doctrine. Essentially a qui tam action is brought by an “informer” or volunteer for violation of a particular civil or criminal statute which generally provides that the informer, if successful, may recover his costs and attorney fees, as well as a share of the penalty. It is called a “qui tam action” because the plaintiff states that he sues for the state as well as himself. Black’s Law Dictionary 1414 (rev. 4th ed. 1968). The constitutionality of the qui tam action was resolutely upheld by the United States Supreme Court in Marvin v. Trout, 199 U.S. 212, 225, 50 L. Ed. 157, 26 S. Ct. 31 (1905), wherein an Ohio anti-gambling measure authorizing a qui tam action was squarely presented. With regard to who might bring an action under the statute, the court stated: Statutes providing for actions by a common informer, who himself had no interest whatever in the controversy other than that given by statute, have been in existence for hundreds of years in England, and in this country ever since the foundation of our Government. The right to recover the penalty or forfeiture granted by statute is frequently given to the first common informer who brings the action, although he has no interest in the matter whatever except as such informer. (Italics ours.) A later Supreme Court case involving a federal statute under which electrical contractors had been charged with collusive bidding on government projects was United States ex rel. Marcus v. Hess, 317 U.S. 537, 87 L. Ed. 443, 63 S. Ct. 379 (1942). Hess strongly reaffirmed the Marvin v. Trout holding, and Justice Black chided the circuit court for its mistaken and limiting interpretation of the qui tam action. See also United States v. Anaconda Wire & Cable Co., 342 F. Supp. 1116 (S.D.N.Y. 1972). The statute books are legion with enactments of a qui tam nature. See, e.g., Int. Rev. Code of 1954 § 7214; Rivers and Harbours Act of 1889, 33 U.S.C. § 411 (1970); Clean Air Amendments of 1970, amending 42 U.S.C. § 1857h-a (1970); Federal Water Pollution Control Act Amendments of 1972 § 505, Pub. L. 92-500, 86 Stat. 816; Noise Control Act of 1972 § 12, Pub. L. 92-574, 86 Stat. 1234. Our recent decision in Hockley v. Hargitt, 82 Wn.2d 337, 510 P.2d 1123 (1973), upheld the application of a modern qui tam provision in the Washington Consumer Protection Act, RCW 19.86.090, which provides for the award of attorney fees, costs and, in the discretion of the court, treble damages. See also Note, 17LoyolaL. Rev. 757 (1971). In our view, the qui tam provision of initiative section 40(4) poses no problem of constitutional dimension. We note respondents’ assertion that they fear the threat of frivolous and unwarranted harassment suits. In this connection we can also note that should the suitor fail in his action the trial court, upon finding lack of reasonable cause, may reimburse the defendant for his costs and attorney’s fees. In view of the current high costs of legal services, we regard this as no small deterrent against frivolous and harassing suits. Additionally, the plaintiff in such cases is required to give the Attorney General a 40-day notice of an alleged violation. The litigant may then proceed only after the service of a second 10-day notice results in no action on the part of the Attorney General. We feel that these specified safeguards are ample protection against frivolous and abusive lawsuits. Should, however, the courts experience a significant number of palpably frivolous lawsuits, this court may not be without the tools to fashion a remedy within its rule-making powers. Cf. CR 65(c) (security required as a prerequisite to the issuance of a restraining order or temporary injunction); RCW 23A.08.460 (bond for costs required by minority shareholders in derivative actions). We think the trial court’s judgment in regard to section 40 (4) of the initiative should be reversed. Attorney Fees The appellants in Fritz, and the respondent public officials, as well as intervenor — Ms. Norton in Simmons, assert and claim that they are entitled to an award of attorney’s fees. It is contended that this litigation has conferred a particular benefit upon the people of Washington, and therefore, the claimants should be awarded attorney fees for rendering a public service. This assertion and claim appears to us to be rather debatable. Ostensibly, appellants in Fritz and the respondents in Simmons are representing their own private interests, and in addition they have not prevailed on appeal. It is well established that attorney fees will not be granted unless they are specifically authorized by statute, and funds are appropriated and available. Rocky Mountain Fire & Cas. Co. v. Rose, 62 Wn.2d 896, 385 P.2d 45. 1 A.L.R. 3d 876 (1963); Schoenwald v. Diamond K Packing Co., 192 Wash. 409, 73 P.2d 748 (1937). Neither our research nor that of claimants has produced convincing authority to support granting of attorney fees requested in these companion cases. We have no alternative but to deny the claims for awards of attorney fees. For the reasons indicated, the trial court should be reversed as to sections 18 and 40 (4) of Initiative Measure No. 276, but otherwise affirmed. It is so ordered. Hale, C.J., and Hamilton and Wright, JJ., concur. Article 2, section 19 is not the only constitutional provision which does not apply to initiative and referendum enactments. In State ex rel. Lofgren v. Kramer, 69 Wn.2d 219, 417 P.2d 837 (1966), we held that amendment 7, section 1 (d) impliedly precluded gubernatorial veto of a referendum before referral to the electorate. As amendment 7, section 1(d) explicitly removes the veto power after passage at the polls, we reasoned that veto before the referendum was passed upon by the people would render the section meaningless. For a broad discussion of the evolution of the initiative and referendum process in Washington, see Trautman, Initiative and Referendum in Washington: A Survey, 49 Wash. L. Rev. 55 (1973). “Sec. 24. Elected Officials Reports of Financial Affairs. (1) Every elected official (except President, Vice President and precinct committeemen) shall on or before January 31st of each year, and every candidate (except for the offices of President, Vice President and precinct committeeman) shall, within two weeks of becoming a candidate, file with the commission a written statement sworn as to its truth and accuracy stating for himself and his immediate family for the preceding twelve months: “(a) Occupation, name of employer, and business address; and “(b) Each direct financial interest in excess of five thousand dollars in a bank or savings account or cash surrender value of any insurance policy; each other direct financial interest in excess of five hundred dollars; and the name, address, nature of entity, nature and value of each such direct financial interest; and “(c) The name and address of each creditor to whom the value of five hundred dollars or more was owed; the original amount of each debt to each such creditor; the amount of each debt owed to each creditor as of the date of filing; the terms of repayment of each such debt; and the security given, if any, for each such debt: Provided, that debts arising out of a “retail installment transaction” as defined in chap. 63.14 R.C.W. (Retail Installment Sales Act) need not be reported; and “(d) Every public or private office, directorship and position as trustee held; and “(e) All persons for whom actual or proposed legislation, rules, rates, or standards has been prepared, promoted, or opposed for current or deferred compensation; the description of such actual or proposed legislation, rules, rates or standards; and the amount of current or deferred compensation paid or promised to be paid; and “(f) The name and address of each governmental entity, corporation, partnership, joint venture, sole proprietorship, association, union, or other business or commercial entity from whom compensation has been received in any form of a total value of five hundred dollars or more; the value of such compensation; and the consideration given or performed in exchange for such compensation; and “(g) The name of any corporation, partnership, joint venture, association, union or other entity in which is held any office, directorship or any general partnership interest, or an ownership interest of ten percent or more; the name or title of that office, directorship or partnership; the nature of ownership interest; and with respect to each such entity the name of each governmental entity, corporation, partnership, joint venture, sole proprietorship,' association, union or other business or commercial entity from which such entity has received compensation in any form in the amount of five hundred dollars or more during the preceding twelve months and the consideration given or performed in exchange for such compensation; and “(h) A list, including legal descriptions, of all real property in the State of Washington, the assessed valuation of which exceeds two thousand five hundred dollars in which any direct financial interest was ac quired during the preceding calendar year, and a statement of the amount and nature of the financial interest and of the consideration given in exchange for such interest; and “(i) A list, including legal descriptions, of all real property in the State of Washington, the assessed valuation of which exceeds two thousand five hundred dollars in which any direct financial interest was divested during the preceding calendar year, and a statement of the amount and nature of the consideration received in exchange for such interest, and the name and address of the person furnishing such consideration; and “(j) A list, including legal descriptions, of all real property in the State of Washington, the assessed valuation of which exceeds two thousand five hundred dollars in which a direct financial interest was held: Provided, that if a description of such property has been included in a report previously filed, such property may be listed, for purposes of this provision, by reference to such previously filed report; “(k) A list, including legal descriptions, of all real property in the State of Washington, the assessed valuation of which exceeds five thousand dollars, in which a corporation, partnership, firm, enterprise or other entity had a direct financial interest, in which corporation, partnership, firm or enterprise a ten percent or greater ownership interest was held; and “(1) Such other information as the commission may deem necessary in order to properly carry out the purposes and policies of this act, as the commission shall by rule prescribe. “(2) Where an amount is required to be reported under subsection (1), paragraphs (a) through (k) of this section, it shall be sufficient to comply with such requirement to report whether the amount is less than one thousand dollars, at least one thousand dollars but less than five thousand dollars, at least five thousand dollars but less than ten thousand dollars, at least ten thousand dollars but less than twenty-five thousand dollars, or twenty-five thousand dollars or more. An amount of stock may be reported by number of shares instead of by market value. No provision of this subsection shall be interpreted to prevent any person from filing more information or more detailed information than required. “(3) Elected officials and candidates reporting under this section shall not be required to file the statements required to be filed with the Secretary of State under R.C.W. 42.21.060.” The right to receive information, or the right of the people to know, has been repeatedly recognized by the United States Supreme Court as a fundamental tenet of the American political system: [T]he Constitution protects the right to receive information and ideas. “This freedom [of speech and press] . . . necessarily protects the right to receive. . . .” [citations omitted] This right to receive information and ideas, regardless of their social worth [citation omitted] is fundamental to our free society. (Italics ours.) Stanley v. Georgia, 394 U.S. 557, 564, 22 L. Ed. 2d 542, 89 S. Ct. 1243 (1969). It is the right of the viewers and listeners, not the right of the broadcasters, which is paramount, [citations omitted] . . .' It is the right of the public to receive suitable access to social, political, esthetic, moral, and other ideas and experiences which is crucial here. (Italics ours.) Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 390, 23 L. Ed. 2d 371, 89 S. Ct. 1794 (1969). Those guarantees are not for the benefit of the press so much as for the benefit of all of us. Time, Inc. v. Hill, 385 U.S. 374, 389, 17 L. Ed. 2d 456, 87 S. Ct. 534 (1967). The right of freedom of speech and press includes not only the right to utter or to print, but the right to distribute, the right to receive, the right to read . . . (Italics ours.) Griswold v. Connecticut, 381 U.S. 479, 482, 14 L. Ed. 2d 510, 85 S. Ct. 1678 (1965). I think the right to receive publications is such a fundamental right. The dissemination of ideas can accomplish nothing if otherwise willing addressees are not free to receive and consider them. It would be a barren marketplace of ideas that had only sellers and no buyers. (Italics ours.) Lamont v. Postmaster General, 381 U.S. 301, 308, 14 L. Ed. 2d 398, 85 S. Ct. 1493 (1965). (Brennan, J., concurring.) This freedom [the First Amendment] embraces the right to distri bute literature [citation omitted.] and necessarily protects the right to receive it. (Italics ours.) Martin v. Struthers, 319 U.S. 141, 143, 87 L. Ed. 1313, 63 S. Ct. 862 (1943). ‘Sec. 15. Registration of Lobbyists. (1) Before doing any lobbying, or within thirty days after being employed as a lobbyist, whichever occurs first, a lobbyist shall register by filing with the commission a lobbyist registration statement, in such detail as the commission shall prescribe, showing: “(a) His name, permanent business address, and any temporary residential and business addresses in Thurston County during the legislative session; “(b) The name, address and occupation or business of the lobbyist’s employer; “ (c) The duration of his employment; “(d) His compensation for lobbying; how much he is to be paid for expenses, and what expenses are to be reimbursed; and a full and particular description of any agreement, arrangement or understanding according to which his compensation, or any portion thereof, is or will be contingent upon the success of any attempt to influence legislation. “(e) Whether the person from whom he receives said compensation employs him solely as a lobbyist or whether he is a regular employee performing services for his employer which include but are not limited to the influencing of legislation; “(f) The general subject or subjects of his legislative interest; “(g) A written authorization from each of the lobbyist’s employers confirming such employment; “(h) The name and address of the person who will have custody of the accounts, bills, receipts, books, papers, and documents required to be kept under this act; . “(i) If the lobbyist’s employer is an entity (including, but not limited to, business and trade associations) whose members include, or which as a representative entity undertakes lobbying activities for, businesses, groups, associations, or organizations, the name and address of each member of such entity or person represented by such entity whose fees, dues, payments or other consideration paid to such entity during either of the prior two years have exceeded five hundred dollars or who is obligated to or has agreed to pay fees, dues, payments or other consideration exceeding five hundred dollars to such entity during the current year. “(2) Any lobbyist who receives or is to receive compensation from more than one person for his services as a lobbyist shall file a separate notice of representation with respect to each such person; except that where a lobbyist whose fee for acting as such in respect to the same legislation or type of legislation is, or is to be, paid or contributed to by more than one person then such lobbyist may file a single statement, in which he shall detail the name, business address and occupation of each person so paying or contributing, and the amount of the respective payments or contributions made by each such person. “(3) Whenever a change, modification, or termination of the lobbyist’s employment occurs, the lobbyist shall, within one week of such change, modification or termination, furnish full information regarding the same by filing with the commission an amended registration statement. “(4) Each lobbyist who has registered shall file a new registration statement, revised as appropriate, each January, and failure to do so shall terminate his registration.” “Sec. 17. Reporting by Lobbyists. (1) Any lobbyist registered under section 15 of this act and any person who lobbies shall file with the commission periodic reports of his activities signed by both the lobbyist and the lobbyist’s employers. The reports shall be made in the form and manner prescribed by the commission. They shall be due quarterly and shall be filed within thirty days after the end of the calendar quarter covered by the report. In addition to the quarterly reports, while the legislature is in session, any lobbyist who lobbies with respect to any legislation shall file interim weekly periodic reports for each week that the legislature is in session, which reports need be signed only by the lobbyist and which shall be filed on each Tuesday for the activities of the week ending on the preceding Saturday. “(2) Each such quarterly and weekly periodic report shall contain: “(a) The totals of all expenditures made or incurred by such lobbyist or on behalf of such lobbyist by the lobbyist’s employer during the period covered by the report, which totals shall be segregated according to financial category, including food and refreshments; living accommodations; advertising; travel; telephone; contributions; office expenses, including rent and the salaries and wages paid for staff and secretarial assistance, or the proportionate amount thereof, paid or incurred for lobbying activities; and other expenses or services: Provided However, that unreimbursed personal living and travel expenses of a lobbyist not incurred directly or indirectly for any lobbying purpose need not be reported: and Provided Further, that the interim weekly reports of legislative lobbyists for the legislative session need show only the expenditures for food and refreshments; living accommodations; travel; contributions; and such other categories as the commission shall prescribe by rule. Each individual expenditure of more than fifteen dollars for entertainment shall be identified by date, place, amount, and the names of all persons in the group partaking in or of such entertainment including any portion thereof attributable to the lobbyists’s participation therein but without allocating any portion of such expenditure to individual participants. “(b) In the case of a lobbyist employed by more than one employer, the proportionate amount of such expenditures in each category incurred on behalf of each of his employers. “(c) An itemized listing of each such expenditure in the nature of a contribution of money or of tangible or intangible personal property to any legislator, or for or on behalf of any legislator. All contributions made to, or for the benefit of, any legislator shall be identified by date, amount, and the name of the legislator receiving, or to be benefited by each such contribution. “(d) The subject matter of proposed legislation or rulemaking; the proposed rules, standards, rates or other legislative enactments under chap. 34.04 R.C.W. and chap. 28B.19 R.C.W. (the state Administrative Procedure Acts) and the state agency considering the same; and the number of each senate or house bill, resolution, or other legislative activity which the lobbyist has been engaged in supporting or opposing during the reporting period; Provided, that in the case of appropriations bills the lobbyist shall enumerate the specific section or sections which he supported or opposed.” “Sec. 18. Reports by Employers of Registered Lobbyists. Every employer of a lobbyist registered under this act shall file with the commission on or before January 31st of each year a statement disclosing for the preceding twelve months the following information: “(1) The name of each elected official, candidate, or any member of his immediate family to whom such employer has paid any compensation, the value of such compensation and the consideration given or performed in exchange for such compensation. “(2) The name of any corporation, partnership, joint venture, association, union or other entity of which any elected official, candidate, or any member of his immediate family is a member, officer, partner, director, associate or employee and to which the employer has paid compensation, the value of such compensation and the consideration given or performed in exchange for such compensation.” The consolidated trial of Simmons and Fritz apparently has resulted in some initial confusion. The issues relating to section 40(4) were discussed tangentially in the Simmons briefs. We address this issue in the context of the Fritz case where it was raised. While the appellants acknowledge that no citizen suit has been lodged against them, they assert, however, that the threat of frivolous and harassing actions filed under section 40(4) exerts a “chilling effect” upon their First Amendment right to petition. NAACP v. Button, 371 U.S. 415, 9 L. Ed. 2d 405, 83 S. Ct. 328 (1963). Such alleged infringement upon the free exercise of First Amendment rights clearly places this issue squarely before the court. In addition, we note the broad scope of review which results as a concomitant of an action for declaratory judgment. As stated in Department of Game v. Puyallup Tribe, Inc., 80 Wn.2d 561, 576, 497 P.2d 171 (1972), rev’d on other grounds, 414 U.S. 44, 38 L. Ed. 2d 254, 94 S. Ct. 330 (1973): We must remember that this case was instituted under the declaratory judgment act, seeking guidelines for the adoption of continuing regulations, if any. It is therefore proper that all issues raised in this case be considered. (Italics ours.) Our breadth of review was also noted in State ex rel. Distilled Spirits Institute, Inc. v. Kinnear, 80 Wn.2d 175, 178, 492 P.2d 1012 (1972): Where the question is one of great public interest and has been brought to the court’s attention in the action where it is adequately briefed and argued, and where it appears that an opinion of the court would be beneficial to the public and to the other branches of the government, the court may exercise its discretion and render a declaratory judgment to resolve a question of constitutional interpretation. In Fritz the issue regarding section 40 (4) is clearly of this nature. The recovery of damages in a suit by a citizen under section 40 (4) is against a private individual defendant, not against the state or any subdivision thereof, and thus does riot involve any disbursement of public funds. The payment of such damages is pursuant to a judgment of the superior court in the same context as the recovery and payment of damages in any litigation. No public funds or misappropriation or misapplication thereof is involved in 40 (4) litigation. It seems obvious that article 8, section 4 of the Washington Constitution is inapplicable.

Durham, C.J. A developmentally disabled woman brought this action for damages against a private group home after she was sexually assaulted by a staff member at the home. We are asked to determine the tort theories under which a group home for developmentally disabled persons may be liable for such assaults. We hold that (1) the special relationship between the group home and its vulnerable residents gives rise to a duty of reasonable care, owed by the group home to its residents, to protect the residents from all foreseeable harms, and (2) sexual assault by a staff member is not a legally unforeseeable harm. Our recognition of this tort duty makes it unnecessary to determine the precise boundaries of a cause of action based on the theory of negligent supervision. We also decline the invitation to adopt a more expansive "nondelegable duty” theory of vicarious liability announced in a recent Indiana case, Stropes v. Heritage House Childrens Ctr., 547 N.E.2d 244 (Ind. 1989). This theory would impose essentially strict liability for an employee’s intentional or criminal conduct. We are unable to determine the public policy consequences of such a major change in Washington employer liability and therefore reserve such considerations of public policy for the Legislature. HISTORY Lori Niece suffers from cerebral palsy and has profound developmental disabilities including difficulty with mobility and communication. She has the mental abilities of a very young child. Since 1986, Niece has been a resident at Elmview Group Home, a licensed private provider of residential care for persons with developmental disabilities. Niece was sexually assaulted on more than one occasion by an Elmview employee, Kleber Quevedo. Prior to the discovery of Quevedo’s assaults, Elmview had no knowledge of his dangerous propensities. Quevedo had no criminal history and had received favorable references from another group home where he had previously worked. At the time of the assaults, Quevedo was the only Elm-view staff member on duty. Elmview previously had a policy against male staff members being left alone with female residents. This policy, adopted in response to prior sexual assaults on residents by another Elmview employee, was intended to protect both staff and residents. By the time of Quevedo’s assaults on Niece, Elmview had abandoned this policy. Niece’s expert, the former medical director of a large public facility for developmentally disabled persons, opined that permitting such unsupervised contact with residents violated the standard of care for group homes with disabled residents. Niece pursues this action against Elmview under several tort theories. Niece alleges that (1) Elmview breached its duty to protect her from foreseeable harms, (2) Elm-view had been negligent in its supervision of Quevedo, and (3) Elmview was vicariously liable for Quevedo’s actions, even though he was not acting within the scope of employment, due to Elmview’s nondelegable duty to protect its residents. The trial court dismissed all of Niece’s claims. The Court of Appeals affirmed the dismissal of Niece’s claims for negligent supervision and vicarious liability. The Court of Appeals reversed the dismissal of Niece’s negligence claim and held that Elmview had a duty to protect Niece from foreseeable harms including sexual assaults by staff. Niece v. Elmview Group Home, 79 Wn. App. 660, 668-69, 904 P.2d 784 (1995). We granted both parties’ petitions for review. PROTECTIVE SPECIAL RELATIONSHIP Asa general rule, there is no duty to prevent a third party from intentionally harming another unless " 'a special relationship exists between the defendant and either the third party or the foreseeable victim of the third party’s conduct.’ ” Hutchins v. 1001 Fourth Ave. Assocs., 116 Wn.2d 217, 227, 802 P.2d 1360 (1991) (quoting Petersen v. State, 100 Wn.2d 421, 426, 671 P.2d 230 (1983)); Lauritzen v. Lauritzen, 74 Wn. App. 432, 438-39, 874 P.2d 861, review denied, 125 Wn.2d 1006 (1994). A duty arises where: (a) a special relation exists between the [defendant] and the third person which imposes a duty upon the [defendant] to control the third person’s conduct, or (b) a special relation exists between the [defendant] and the other which gives the other a right to protection. Petersen, 100 Wn.2d at 426 (quoting Restatement (Second) op Torts § 315 (1965)). Niece’s negligence claims are based on both types of special relationship. Niece’s negligent supervision claim (discussed in the next section) is based on the relationship between Elmview and its employee Quevedo. Niece’s claim for Elmview’s negligent failure to protect her is based on the relationship between Niece and Elmview. Many special relationships give rise to a duty to prevent harms caused by the intentional or criminal conduct of third parties. For example, a school has a duty to protect students in its custody from reasonably anticipated dangers. McLeod v. Grant County Sch. Dist. No. 128, 42 Wn.2d 316, 320, 255 P.2d 360 (1953). See also J.N. ex rel. Hager v. Bellingham Sch. Dist. No. 501, 74 Wn. App. 49, 871 P.2d 1106 (1994); Briscoe v. School Dist. No. 123, 32 Wn.2d 353, 201 P.2d 697 (1949). The rationale for such a duty — the placement of the student in the care of the defendant with the resulting loss of the student’s ability to protect himself or herself — is also the basis for the similar duty of an innkeeper to protect guests from the criminal actions of third parties. Hutchins, 116 Wn.2d at 228 (citing Joseph A. Page, Premises Liability § 11.2, at 292 (2d ed. 1988)). Other relationships falling into the general group of cases where the defendant has a special relationship with the victim are also protective in nature, historically involving an affirmative duty to render aid. The defendant may therefore be required to guard his or her charge against harm from others. Thus a duty may be owed from a carrier to its passenger, from an employer to an employee, from a hospital to a patient, and from a business establishment to a customer. Hutchins, 116 Wn.2d at 228 (citing W. Page Keeton et al., Prosser and Keeton on Torts § 56, at 383 (5th ed. 1984)). The special relationship which is most analogous to the relationship at issue here is the relationship between a hospital and its patients. In Hunt v. King County, 4 Wn. App. 14, 481 P.2d 593, review denied, 79 Wn.2d 1001 (1971), a disturbed and suicidal patient was admitted to the psychiatric ward of a county hospital. The patient was injured when he found an open window and jumped five stories to the ground. The Court of Appeals held that the hospital owed the patient a duty of care which included a "duty to safeguard the patient from the reasonably foreseeable risk of self-inflicted harm through escape.” Hunt, 4 Wn. App. at 20. In Shepard v. Mielke, 75 Wn. App. 201, 205, 877 P.2d 220 (1994), the Court of Appeals recognized that a convalescent center had a general duty to protect its vulnerable residents. The plaintiff in Shepard had suffered brain damage and was entrusted to Manor Care, a convalescent center, where she was sexually assaulted by a visitor. The Court of Appeals observed that Ms. Shepard could not lock her door, screen visitors, or generally provide for her own safety. She was in Manor Care precisely because she was unable to perform these tasks for herself. Manor Care, like other nursing homes, holds itself out to the public as willing and able to provide these services, for a fee. Shepard, 75 Wn. App. at 205-06. As a result, the convalescent home owed its resident a duty to protect her from reasonably foreseeable risks of harm, including criminal actions by visitors. Following Shepard, the Court of Appeals in the present case recognized the special relationship between a group home and its highly vulnerable residents. "[A] nursing home’s function is 'to provide care for those who are unable because of physical or mental impairment to provide care for themselves.’ ” Niece, 79 Wn. App. at 668-69 (quoting Shepard, 75 Wn. App. at 205). Consequently, Elmview had a duty to take reasonable precautions to protect Niece from the foreseeable consequences of her impairments, including possible sexual assaults by staff. The special relationship between Elmview and its vulnerable residents is perhaps more significant, for purposes of Elmview’s duty of care, than the recognized special relationships between a common carrier and its passengers or between a hotel and its guests. As noted earlier, these special tort duties are based on the liable party’s assumption of responsibility for the safety of another. See Lauritzen, 74 Wn. App. at 440. Passengers and hotel guests are merely away from familiar surroundings and relying on their hosts to take the same reasonable precautions that they would take at home. Profoundly disabled persons are totally unable to protect themselves and are thus completely dependent on their caregivers for their personal safety. Elmview urged the Court of Appeals to limit the duty-recognized in Shepard to provide protection from outsiders but not from staff. The Court of Appeals properly rejected this argument, recognizing that a group home for developmentally disabled persons has a duty to protect its residents from all foreseeable harms. As the Court of Appeals pointed out, residents of group homes are more vulnerable to abuse by staff than by visitors or other third parties. "Staff members have greater access to nursing home residents than the general public.” Niece, 79 Wn. App. at 669. If hospitals and group homes have a duty to protect their vulnerable residents from visitors (Shepard) and from themselves (Hunt), then they also have a duty to protect their residents from the harm against which they are least able to protect themselves — abuse at the hands of staff. Other liability theories distinguished: Elmview attempts to limit its duty of care by blurring the essential analytical distinction between its duty of care as Niece’s custodial care provider and its liability as Quevedo’s employer. Elmview suggests that it cannot be liable for Quevedo’s actions outside the scope of employment. Cases relied on by Elmview establish that employers are not vicariously liable for the actions of their employees which are outside the scope of employment. However, Elmview’s negligence liability for its failure to protect its vulnerable residents from abuse by staff is not vicarious liability and the cited cases are thus inapplicable. Vicarious liability, otherwise known as the doctrine of respondeat superior, imposes liability on an employer for the torts of an employee who is acting on the employer’s behalf. Where the employee steps aside from the employer’s purposes in order to pursue a personal objective of the employee, the employer is not vicariously liable. Kuehn v. White, 24 Wn. App. 274, 277, 600 P.2d 679 (1979). Whether or not the employer has any particular relationship to the victim of the employee’s negligence or intentional wrongdoing, the scope of employment limits the employer’s vicarious liability. However, the scope of employment is not a limit on an employer’s liability for a breach of its own duty of care. Even where an employee is acting outside the scope of employment, the relationship between employer and employee gives rise to a limited duty, owed by an employer to foreseeable victims, to prevent the tasks, premises, or instrumentalities entrusted to an employee from endangering others. This duty gives rise to causes of action for negligent hiring, retention and supervision. Liability under these theories is analytically distinct and separate from vicarious liability. These causes of action are based on the theory that "such negligence on the part of the employer is a wrong to [the injured party], entirely independent of the liability of the employer under the doctrine of respondeat superior.” Scott v. Blanchet High Sch., 50 Wn. App. 37, 43, 747 P.2d 1124 (1987) (quoting 53 Am. Jur. 2d Master and Servant § 422 (1970)), review denied, 110 Wn.2d 1016 (1988). Washington cases have generally held that an employer is not liable for negligent supervision of an employee unless the employer knew, or in the exercise of reasonable care should have known, that the employee presented a risk of danger to others. In Thompson v. Everett Clinic, 71 Wn. App. 548, 860 P.2d 1054 (1993), review denied, 123 Wn.2d 1027 (1994), the court 'found no evidence that the health clinic knew or should have known of a physician’s inappropriate sexual conduct in treating patients. Thompson, 71 Wn. App. at 555. In Peck v. Siau, 65 Wn. App. 285, 289-90, 827 P.2d 1108, review denied, 120 Wn.2d 1005 (1992), there was no evidence that school district knew or should have known that a teacher constituted a danger to students. Elmview relies on Thompson and Peck, arguing that if the facts do not support a cause of action for negligently supervising Quevedo, Elmview is not liable for failing to protect Niece. This argument is based on an incorrect understanding of the duty that gives rise to a cause of action for negligent supervision of employees. The theory of liability for negligent supervision is based on the special relationship between employer and employee, not the relationship between group home and resident. Cases like Thompson and Peck, which define the scope of an employer’s duty to control its employees for the protection of third parties, do not inform the scope of the duty of care owed by Elmview to Niece by virtue of Elmview’s special relationship to her. While an employer generally does not have a duty to guard against the possibility that one of its employees may be an undiscovered sexual predator, a group home for developmentally disabled persons has a duty to protect residents from such predators regardless of whether those predators are strangers, visitors, other residents, or employees. The scope of Elmview’s duty of care — foreseeability: The duty to protect another person from the intentional or criminal actions of third parties arises where one party is "entrusted with the well being of another.” Lauritzen, 74 Wn. App. at 440. Given Niece’s total inability to take care of herself, Elmview was responsible for every aspect of her well being. This responsibility gives rise to a duty to protect Niece and other similarly vulnerable residents from a universe of possible harms. This duty is limited only by the concept of foreseeability. Christen v. Lee, 113 Wn.2d 479, 492, 780 P.2d 1307 (1989). Given Elmview’s duty to protect Niece from all foreseeable harms, the next issue is whether, as Elmview suggests, sexual assault was legally unforeseeable. Quevedo’s assault was not legally unforeseeable as long as the possibility of sexual assaults on residents by staff was within the general field of danger which should have been anticipated. Shepard, 75 Wn. App. at 206 (citing Hansen v. Friend, 118 Wn.2d 476, 483-84, 824 P.2d 483 (1992)). Intentional or criminal conduct may be foreseeable unless it is "so highly extraordinary or improbable as to be wholly beyond the range of expectability.” Johnson v. State, 77 Wn. App. 934, 942, 894 P.2d 1366) (sexual assault on dormitory resident on college campus), review denied, 127 Wn.2d 1020 (1995); Shepard, 75 Wn. App. at 206 (sexual assault on convalescent home resident); McLeod v. Grant County Sch. Dist. No. 128, 42 Wn.2d 316, 322, 255 P.2d 360 (1953) (sexual assault on student at school). The prior sexual assaults at Elmview, the earlier policy against unsupervised contact with residents, the opinion of Niece’s expert that such unsupervised contact is unwise, and Legislative recognition of the problem of sexual abuse in residential care facilities, all demonstrate that sexual abuse by staff at a group home for developmentally disabled persons may be a foreseeable hazard against which reasonable precautions must be taken. We hold that (1) the special relationship between a group home for the developmentally disabled and its vulnerable residents creates a duty of reasonable care, owed by the group home to its residents, to protect them from all foreseeable harms, and (2) sexual assault by a staff member is not a legally unforeseeable harm. NEGLIGENT SUPERVISION The theory of negligent supervision creates a limited duty to control an employee for the protection of third parties, even where the employee is acting outside the scope of employment. A master is under a duty to exercise reasonable care so [as] to control his servant while acting outside the scope of his employment as to prevent him from intentionally harming others or from so conducting himself as to create an unreasonable risk of bodily harm to them, if (a) the servant (i) is upon the premises in possession of the master or upon which the servant is privileged to enter only as his servant, or (ii) is using a chattel of the master, and (b) the master (i) knows or has reason to know that he has the ability to control his servant, and (ii) knows or should know of the necessity and opportunity for exercising such control. Peck, 65 Wn. App. at 294 (quoting Restatement (Second) of Torts § 317 (1965) (emphasis added)). Washington cases have generally interpreted the knowledge element to require a showing of knowledge of the dangerous tendencies of the particular employee. Thompson v. Everett Clinic, 71 Wn. App. 548; Peck v. Siau, 65 Wn. App. 285. The record does not show that Elmview knew or should have known that Quevedo would sexually assault residents. Niece bases her negligent supervision claim on more general factors such as (1) the lack of supervision, (2) the abandoned policy against unsupervised contact with residents, (3) the vulnerability of the residents in general and Niece in particular, (4) the prior incidents of sexual abuse by staff at Elmview, and (5) the expert’s opinion relating to the need for supervision. Niece contends these factors demonstrate Elmview’s knowledge of the need to adequately supervise all of its employees. This argument appears to be an expansion of the existing cause of action for negligent supervision. Whether or not such an expansion of Washington employer liability is warranted, we find it unnecessary to resolve the issue in this case. Elmview’s duty to protect Niece from all foreseeable harms, including the harm of sexual assault by staff, is much broader than its duty as an employer to control its employees. The same evidence that would establish Elmview’s negligence under a broad theory of negligent supervision will also establish its negligence in failing to protect Niece from all foreseeable harms. Niece’s cause of action for negligent supervision thus collapses into her negligence claim based on Elm-view’s breach of its special relationship duty of care. We therefore find it unnecessary to determine whether Niece has presented a factually sufficient claim for negligent supervision. VICARIOUS LIABILITY Niece and amicus Washington State Trial Lawyers Association (WSTLA) argue that Elmview owed Niece a nondelegable duty of protection which renders Elmview vicariously liable for Quevedo’s assaults. This argument is modeled after a recent Indiana Supreme Court decision, Stropes v. Heritage House Childrens Ctr., 547 N.E.2d 244 (Ind. 1989). We find Stropes to be incompatible with existing Washington law relating to the scope of an employer’s liability for employees’ intentional mistreatment of persons to whom the employer owes a duty of care. Such a significant expansion of employer liability should be left to the consideration of the Legislature. Stropes v. Heritage House Childrens Ctr. In Stropes, a severely retarded minor resident of a group home who was sexually assaulted by a staff member brought an action against the group home based on its vicarious liability for the assault. Upholding the vicarious liability claim, the Indiana court observed that "once one has, by contract or otherwise, assumed the duty to protect another, the nature of that duty may be such that the responsibility for providing the protection cannot be delegated even though the protective tasks themselves are.” Stropes, 547 N.E.2d. at 250. The rationale for this theory was found in the extraordinary standard of care traditionally applied to common carriers. Under the historical rule, a common carrier is vicariously liable for assaults on a passenger by an employee whether or not the employee was acting within the scope of employment. Stropes, 547 N.E.2d at 251 (citing Indianapolis Union Ry. Co. v. Cooper, 6 Ind. App. 202, 205, 33 N.E. 219, 220 (1893)). This heightened duty of care is based on an implied assurance that a passenger will be transported safely and on the passengers’ surrender of control and the carrier’s assumption of responsibility. Borrowing these rationales from the common carrier exception, the Stropes court noted that the resident’s "contract of passage” contemplated that the home would assume all responsibility for the resident’s care and safety. The home had "a non-delegable duty to provide protection and care so as to fall within the common carrier exception.” Siropes, 547 N.E.2d at 254. Therefore, the home was liable for the staif member’s breach of that duty whether or not he was acting within the scope of employment The Nondelegable Duty Theory in Washington: An early Washington case, Marks v. Alaska S.S. Co., adopts the historical exception for common carriers. Marks v. Alaska S.S. Co., 71 Wash. 167, 127 P. 1101 (1912) (citing 3 Seymour D. Thompson, Law of Negligence § 3166, at 623 (1902)). But the issue is whether the nondel-egable duty should be. extended to special relationships other than the relationship between common carriers and passengers. No recent Washington cases have used the nondelegable duty theory to hold an employer liable for an employee’s intentionally tortious or criminal conduct outside the scope of employment. Niece contends this court adopted the nondelegable duty theory in the 1967 case of Carabba v. Anacortes Sch. Dist. No. 103, 72 Wn.2d 939, 435 P.2d 936 (1967). In Carabba, a student wrestler alleged that his injuries were caused by the negligence of the referee, a member of an independent group of volunteer referees. Noting that the district owed the student a duty of protection, the court concluded that this duty was nondelegable and the district was therefore liable. Carabba, 72 Wn.2d at 957-58. Our holding that the district’s duty of protection was nondelegable was largely based on the Restatement (Second) of Agency § 214 (1958). A master or other principal who is under a duty to provide protection for or to have care used to protect others or their property and who confides the performance of such duty to a servant or other person is subject to liability to such others for harm caused to them by the failure of such agent to perform the duty. Under § 214, certain voluntary relationships create a duty to see that due care is actually used by servants or agents to protect another party. The Restatement suggests as examples that a railroad would be liable for a conductor who assaults a passenger (the common carrier exception) and that a hotel would be liable for a maid who steals a guest’s clothes. Similarly, Niece suggests that Elmview, having delegated its responsibility for Niece’s care to Que-vedo, remained liable under § 214 for Quevedo’s failure to actually provide such care. Our application of § 214 in Carabba does not compel a determination that group homes should be vicariously liable for sexual assaults on residents, or that any Washington employer should be vicariously liable for the intentional or criminal conduct of employees. A holding that a school district is liable for the negligence of a volunteer referee bears little resemblance to the application of § 214 suggested by Niece. Vicarious liability for intentional or criminal actions of employees would be incompatible with recent Washington cases rejecting vicarious liability for sexual assault, even in cases involving recognized protective special relationships. Bratton, 73 Wn. App. 492, 501-02, 870 P.2d 981 (collecting cases from other jurisdictions), review denied, 124 Wn.2d 1029 (1994); Peck, 65 Wn. App. at 287; Scott, 50 Wn. App. at 47. Notwithstanding Car-abba, current Washington law clearly rejects vicarious liability for intentional or criminal conduct outside the scope of employment. Public Policy Considerations: Indiana is apparently the only jurisdiction to adopt the nondelegable duty theory recognized in Stropes, 547 N.E.2d 244. Before Siropes was decided, the theory was considered and rejected by the Fourth Circuit in a case governed by South Carolina law. Rabon v. Guardsmark, Inc., 571 F.2d 1277, 1281 (4th Cir.) (holding that a security company was not vicariously liable for a rape by one of its security guards), cert. denied, 439 U.S. 866 (1978). Since Siropes was decided, other jurisdictions have refused to follow it. See Maguire v. State, 254 Mont. 178, 835 P.2d 755, 759 (1992); Worcester Ins. Co. v. Fell Acres Day Sch., Inc., 408 Mass. 393, 558 N.E.2d 958, 967-68 (1990). See also Sebastian v. District of Columbia, 636 A.2d 958 (D.C. 1994) (declining to follow Siropes because the District of Columbia does not follow the common carrier rule). Whether we should abandon our traditional doctrine of respondeat superior and recognize vicarious liability for sexual assaults under Siropes is ultimately a question of public policy. In support of the nondelegable duty theory, Niece and WSTLA point to the unique relationship between the most vulnerable members of society and their caregivers. Niece cites a number of studies which suggest that disabled persons are much more likely to be victims of sexual abuse than their nondisabled peers and that sexual abuse of such persons by their caregivers is alarmingly common. Supplemental Br. of Pet’r Niece at 1-3, 5-7. Niece suggests the operators of the group homes are best able to prevent this abuse. But the broad negligence liability that we have already recognized creates adequate incentives for the operators of group homes for developmentally disabled persons to take all reasonable precautions against sexual abuse in their facilities. The nondelegable duty theory would only impose additional liability without corresponding fault, making group homes the insurers of their employees’ conduct. If a group home is to be held liable for an employee’s sexual assault even where the group home was not at fault, there must be some other sound policy reason to shift the loss created by the employee’s intentional wrong from one innocent party to another. If the studies cited by Niece are accurate, vicarious liability for such abuse would likely be extremely burdensome. It is not at all clear that the imposition of such liability would actually improve the lives of persons who are dependent upon private residential care facilities. When we are unable to determine the public policy merit of a proposed significant change in the tort law, caution dictates that we defer to the Legislature. Rejecting the imposition of vicarious liability for a teacher’s sexual relationship with a student, the Bratton court wrote: [O]ur imposition of vicarious liability on the school district would be "far-reaching and . . . would rearrange, across the state, the responsibility of employers for the conduct of their employees.” . . . Any needed redirection of social policy is more appropriately the function of the Legislature. Bratton, 73 Wn. App. at 502 (citing Kuehn, 24 Wn. App. at 280) (citations omitted). It is particularly important to recognize the limits on our ability as an appellate court to decide complex questions of public policy where, as here, a decision to impose a new tort liability requires a consideration of factual matters extrinsic to the case before the court. "The Legislature is uniquely able to hold hearings, gather crucial information, and learn the full extent of the competing societal interests.” Burkhart v. Harrod, 110 Wn.2d 381, 385, 755 P.2d 759 (1988). Niece’s policy argument raises difficult, unanswered questions about how the cost of such liability would actually be borne. The financial burden created by such strict liability might actually reduce the residential care industry’s ability to provide quality care. Would insurance against such liability be affordable or even available? Would the operators of group homes simply pass the cost of such liability on to the families of residents or to the State treasury? Or would commercial providers of residential care shy away from accepting responsibility for the most vulnerable disabled persons, those most in need of residential care? We are unable to answer these questions and we cannot test the economic theories and policy arguments submitted in support of the Stropes liability theory. To the extent the dissent purports to have answers to these difficult questions, those answers are devoid of any supporting evidence or expertise. All other courts that have considered this issue have prudently refused to follow Stropes and deferred to their state legislatures for the same reasons we have given here. The Montana Supreme Court observed that "such a major change to the respondeat superior doctrine is best left to the legislature.” Maguire v. State, 835 P.2d at 759. Two of the five members of the Indiana Supreme Court in Stropes rejected the nondelegable duty theory for the same reasons. The majority opinion establishes a major difference in the law of this state affecting every health care and custodial institution and virtually makes each of those institutions an insurer of the safety of the persons under their care and control. If such a wide-sweeping change in the substantive law is to take place, it should be done by the legislature and not the judiciary. Stropes, 547 N.E.2d at 255 (Givan, J., dissenting). We agree. Current Washington law does not support the vicarious liability theory set forth in Stropes and we decline to adopt this theory. Affirmed. Dolliver, Smith, Guy, Madsen, and Talmadge, JJ., concur. Wee also Miller v. Staton, 58 Wn.2d 879, 365 P.2d 333 (1961) (duty owed by innkeeper or restaurant owner to protect guests from other guests); Bartlett v. Hantover, 9 Wn. App. 614, 513 P.2d 844 (1973) (duty owed by employer to protect employees from criminal activity to which the employment exposes the employee), reversed on other grounds, 84 Wn.2d 426, 526 P.2d 1217 (1974)); Marks v. Alaska S.S. Co., 71 Wash. 167, 127 P. 1101 (1912) (duty owed by common carrier to protect passengers from crew members). Curiously, the Shepard court suggested that the duty to protect vulnerable residents was not dependent upon the existence of a special relationship. "The analysis urged by the parties and adopted by the trial court suggests the necessity of a special relationship as a prerequisite to imposing a duty to protect Ms. Shepard from Mr. Mielke’s criminal act. We disagree. The duty of ordinary care here would include the duty of taking reasonable precautions to protect those who are unable to protect themselves.” Shepard v. Mielke, 75 Wn. App. 201, 205, 877 P.2d 220 (1994) (footnote omitted). Similarly, the Court of Appeals in the present case did not acknowledge that the duty of care owed by Elmview is based on its special relationship to Niece. Contrary to Shepard’s rejection of the necessity of a special relationship, a hospital’s duty to protect its patients from the tortious or criminal actions of third parties is entirely based on the special relationship between the hospital and the patient. It is readily apparent from the reasoning in Shepard that the Court of Appeals relied on the protective nature of the relationship in finding a duty to protect the resident. Shepard relied on Hunt v. King County, 4 Wn. App. 14, 481 P.2d 593, review denied, 79 Wn.2d 1001 (1971), which finds a similar duty without using the term "special relationship.” Shepard, 75 Wn. App. at 205 (citing Hunt, 4 Wn. App. at 24). Nevertheless, the relationship between a hospital and its vulnerable patients is a recognized special relationship. Hutchins v. 1001 Fourth Ave. Assocs., 116 Wn.2d 217, 228, 802 P.2d 1360 (1991). It is only by virtue of this special relationship that a hospital owes its patients a duty of care to protect them from intentional harm by third parties. Likewise, the duty of care at issue in this case and in similar cases is based on the protective function of the special relationship between custodial care-providers and their vulnerable wards. Niece cites various administrative code provisions as additional support for the proposition that group homes like Elmview are responsible for the health and safety of their residents and thus owe them a duty of care. WAC 246-316--050; former WAC 275-36-180. The provisions cited, however, are not sufficiently specific to illuminate either the precise scope of that duty or whether Elmview breached such a duty. "[T]here is no reason to differentiate between foreseeable harms caused by potentially hazardous physical conditions (McLeod), visitors (Shepard) or staff.” Niece, 79 Wn. App. at 669. Bratton v. Calkins, 73 Wn. App. 492, 870 P.2d 981 (teacher’s sexual relationship with student), review denied, 124 Wn.2d 1029 (1994); Thompson v. Everett Clinic, 71 Wn. App. 548, 555, 860 P.2d 1054 (1993) (physician’s inappropriate sexual conduct in treating clinic patients), review denied, 123 Wn.2d 1027 (1994); Blenheim v. Dawson & Hall, Ltd., 35 Wn. App. 435, 667 P.2d 125 (rape committed by construction contractor’s employees at a Christmas party), review denied, 100 Wn.2d 1025 (1983); Kuehn v. White, 24 Wn. App. 274, 277, 600 P.2d 679 (1979) (assault by truck driver on another motorist); Kyreacos v. Smith, 89 Wn.2d 425, 572 P.2d 723 (1977) (premeditated murder by police officer). Whether the trial court properly dismissed Niece’s claims for negligent supervision is discussed in the next section. "This concept that one may have a duty to control the actions of another (as opposed to a victim placed in the care of defendant) is described as also including, among others, the relationships between employer and employee, tavern keeper and intoxicated guest, physician and assistants, hospital and unqualified physician, and parents and children.” Hutchins, 116 Wn.2d at 229 (citing W. Page Keeton et al., Prosser and Keeton on Torts § 56, at 383 (5th ed. 1984) (emphasis added)). The expert’s opinion was based, at least in part, on an incorrect understanding of the facts relating to Quevedo’s particular responsibilities in caring for Niece in the absence of other staff. This discrepancy may affect the weight and relevance of the expert’s testimony at trial. See Niece, 79 Wn. App. at 670 n.2. The expert’s opinion that lengthy periods of unsupervised contact with residents was inappropriate sufficiently raises the factual issues of whether Elmview exercised due care and whether Quevedo’s actions were foreseeable. RCW 70.129.130 recognizes the right of residents of long-term care facilities to be free from abuse, including sexual abuse. See infra note 16. The foreseeability of Quevedo’s assault upon Niece remains a question of fact for the jury. Johnson v. State, 77 Wn. App. 934, 942, 894 P.2d 1366 (citing McLeod, 42 Wn.2d at 321-23), review denied, 127 Wn.2d 1020 (1995). See also Caldwell v. Northern Pac. Ry. Co., 56 Wash. 223, 105 P. 625 (1909). Marks has not been overruled and recent federal cases have followed it. See Gilstrap v. Amtrack, 998 F.2d 559, 561 (8th Cir. 1993) (rejecting the argument that Marks is no longer good law). See also Morton v. De Oliveira, 984 F.2d 289 (9th Cir.), cert. denied, 510 U.S. 907 (1993). However, it has also been suggested that the common carrier exception is no longer a viable tort rule in light of the modern doctrine of respondeat superior. Adams v. New York City Transit Auth., 88 N.Y.2d 116, 666 N.E.2d 216, 643 N.Y.S.2d 511 (1996). We decline to determine the viability of this historical rule in a case which does not squarely present the issue. In 1909, this court found that a tavern owner could be liable for a bartender who intentionally set fire to a sleeping patron’s foot. Beilke v. Carroll, 51 Wash. 395, 98 P. 1119 (1909). The Restatement expressly reserves the issues of (1) which protective relationships give rise to such liability and (2) whether the resulting duty of care is satisfied by the exercise of due care in the delegation of the protective tasks or only where due care is actually used by the servants to whom the protective tasks are delegated. "A statement of the situations in which a duty of this sort exists and of the limits of such duty is beyond the scope of the Restatement of this Subject.” Restatement (Second) of Agency § 214 cmt. e. Elmview and WDTL do not refute these studies or suggest that sexual abuse of developmentally disabled persons is not a significant social problem. WSTLA’s response to this observation is particularly disingenuous. "Vicarious liability based on a non-delegable duty does not make group homes 'insurers.’ An injured resident must still prove fault on the part of an employee to whom the group home has delegated its care-giving responsibility.” Supplemental Br. of Amicus WSTLA at 5 (citation omitted). Intentionally tortious or criminal conduct, such as sexual assault upon a developmentally disabled person, will virtually always constitute fault on the part of the employee. Niece and WSTLA cite RCW 70.129.170 for the proposition that the Legislature recognizes the court’s role in determining the rights and remedies available to residents of group homes and other types of residential care facilities. RCW Chapter 70.129 guarantees the basic rights of residents of long-term care facilities, including the right to free from abuse, including sexual abuse. RCW 70.129.170 provides that while residents and residential care facilities should use informal means to resolve disputes regarding those rights, the provisions of the statute should not be construed to restrict existing legal remedies, "including any remedy available to an individual at common law” or to "operate in derogation of any right of action on the part of any individual.” Assuming, arguendo, that RCW 70.129.170 applies to group homes licensed under RCW 74.15, recognition of our authority to develop Washington tort law does not preclude our reservation of complex questions of public policy for the consideration of the Legislature.

Ellis, J. On October 19, 1910, John W. Stone and Lu-villa J. Stone were husband and wife. An action was then pending between them for a divorce, instituted by Luvilla J. Stone in the superior court of King county. The issue of the marriage of the parties was a female child, then of the age of six years; they also owned property of the value of eight or nine thousand dollars. For the purpose of providing for the support and custody of the child mentioned, and of settling their property rights in case a divorce should be granted in the pending suit, the following agreement was entered into between them: “This agreement made and entered into this 19th day of October, 1910, by and between Luvilla J. Stone, plaintiff above named, party of the first part, and John W. Stone, the defendant, party of the second part, the respective counsel for said plaintiff and defendant concurring therein; “Witnesseth: That whereas, the party of the first part, as plaintiff, has in the above entitled action begun an action for a divorce against the party of the second part, as defendant, and for certain property division, alimony, custody and maintenance of the minor child of parties; “And, whereas, said parties desire to settle, and adjust amicably certain of the matters arising out of said action, now, therefore, it is hereby mutually agreed by and between the parties hereto as follows, to wit: “(1) That said decree may award the care, custody and control of the minor child of the parties hereto to said first party. “(2) That party of the second part shall and will forthwith upon the filing of the divorce decree in said action pay to first party, through her counsel, the sum of Fifteen Hundred Dollars ($1,500) cash, the same to be in lieu of all alimony, costs, suit money and interest in the property, either real or personal, of the community or of second party and that first party will execute any deed or. other release desired by second party’s counsel touching title to said property. “(8) That second party shall and will on the day said decree is filed and monthly thereafter*, and on or before the 15th day of each and every month, pay to said first party, solely for the support and maintenance of said minor, the sum of Twenty-five Dollars ($25), said payments to continue during the minority of said child but to cease upon her earlier death, and that in case of the sickness or injury by accident of said minor, second party will pay such further reasonable and proper charges as may be incurred in her care and on her behalf in excess of said Twenty-five Dollars ($25) monthly, or such accumulation as may accrue in addition to said monthly payments, provided, however, that such additional payments shall be made only upon the presentation of bills duly certified by claimants. “(1) It is understood and agreed that in view of the agreement herein reached and made by and between the parties hereto with reference to the payment of the amounts herein-above set forth at the times and in the manner stated, the same need not and shall not be incorporated in the decree to be entered in said divorce action, but shall be as binding upon the party of the second part and shall have the like force as though the same were set forth and contained in said decree. “(5) That said second party shall have the right to visit said minor child at reasonable and proper times and with her consent, to have her visit his home at reasonable times for a reasonable period. “In witness whereof, the parties hereto have hereunto set their hands and seals in duplicate at Seattle, Washington, this 19th day of October, 1910.” Later on in the same day, after a hearing by the court, a divorce was granted at the suit.of Luvilla J. Stone; the decree for which awarded her the custody of the minor child, but made no provision for its support, nor any disposition of the property of the parties, nor did it contain any reference to the foregoing agreement. John W. Stone paid to Luvilla Stone the cash agreed to be taken in lieu of alimony and suit money, and during the few months he lived after the decree, paid the monthly allowances provided for in the agreement for the support of the minor daughter. John W. Stone had been married prior to his marriage with Luvilla J. Stone, and had as the issue of his first marriage four daughters, three of whom were under the age of majority at the time the divorce decree was entered. John W. Stone died on January 3, 1911, leaving a will in which he named Frank S. Bayley, the appellant in this proceeding, as his executor. By the terms of his will, he left to the children of his first wife certain life insurance amounting to $2,000, to be divided between them share and share alike; to his daughter by his second wife $1,000, under the direction that the sum named should be paid to Thomas H. Stein, as trustee, to hold until his daughter should reach the age of twenty years, when it should be paid over to her, with the increment thereof. No provision was made for the support of this daughter during her minority in case of his death. The residue of his property he also directed to be conveyed to Stein, as trustee, to be held for the benefit of the daughters by his first marriage, the income of the same' to be applied to their support and maintenance during their infancy; and the principal, with any increase, to be turned over to these children by the first wife on their reaching the age of majority. It appeared that the whole estate in the executor’s hands, including the life insurance, was of the. value of $9,000. Stone, at the time of his death, was working for a salary of $175 a month. After Stone’s death, no payments for the support of the daughter of the second marriage were made to Luvilla J. Stone under the contract set forth, and on January 30, 1912, she presented to the executor a claim for the installments then due thereunder, aggregating three hundred dollars; and a few days later presented a claim for thirty-one hundred and fifty dollars, being the amount claimed as necessary to meet the future installments as they became due under the contract. The executor rejected the claims, and the present proceeding was instituted to establish the same as claims due and payable from the property of the estate in the hands of the executor. After a hearing, the court entered the following judgment: “It is considered and the court does hereby adjudge and decree as follows : “(1) That the sum of four hundred ninety and 83-100 dollars ($490.83) for the period beginning on the 15th day of January, 1911, and ending on the fourth day of September, 1912, be allowed and established as an unconditional claim in favor of the plaintiff and against the said estate and that the said claim be paid in due course of administration of the said estate. “(2) That the plaintiff’s claim from the 4th day of September, 1912, and thereafter during the minority of said child, on condition that plaintiff maintain and support said child, be allowed and approved as an established' claim against said estate, to be paid to plaintiff on the conditions aforesaid, at the rate of twenty-five dollars ($25) per month, on the 15th day of each and every month and to be paid in the due course of administration of said estate. “(3) That plaintiff recover her costs and disbursements to be taxed and to be paid in due course of administration of said estate.” From the judgment so entered, this appeal is prosecuted. The argument of counsel is directed to the single question, Did the obligation of the contract to pay the monthly allowance for the support of the minor child survive the death of the promisor? Unless this contract is contrary to public policy, or in contravention of some statutory enactment, the question must be determined by the intention of the parties, to be gathered from the contract. That it was the intention of the parties that the contract should survive, in case the child survive, cannot be questioned. The words, “said payments to continue during the minority of said child but to cease upon her earlier death,” leave no room for other construction. The death of the child during minority is the only terminating contingency specifically recognized in the instrument. There is no hint that the obligation of the contract should be contingent also upon the promisor’s survival. That the father himself recognized this as a continuing provision for the support of this child is evidenced by the fact that in his will he provided for the support of his other children during their minority, yet made no such testamentary provision for this child’s support, though making bequests in trust for all of his children to fall into their possession with the increment after they shall severally attain their majority. The only modifying element in the contract is found in the stipulation that it “shall be as binding upon the party of the second part and shall have the like force and effect as though the same were set forth and contained in said decree” (of divorce). If, therefore, such a provision, had it been set out in the decree itself, would have been valid and surviving, there can be no question that the contract is valid and that .the obligation survives. That such a provision for the support of a minor child, when contained in-the decree of divorce, survives as against the husband’s estate, subject only to the future orders of the court, can hardly admit of serious question. While it is true that, at common law, a father was under no legal obligation to provide support for his minor children after his death, we can conceive of no sound’ reasons of public policy to prevent his so doing. He can by contract create a continuing debt in favor of strangers which would constitute a claim against his estate; then why not as in favor of his children? Moreover, in the United States, the powers of the courts in divorce matters are statutory. Our statute is certainly broad enough to enable the court to provide for the support of minor children and make the provision binding upon the estate. Rem. & Bal. Code, § 989 (P. C. 159 § 15), reads as follows: “In granting a divorce, the court shall also make such disposition of the property of the parties as shall appear just and equitable, having regard to the respective merits, of the parties, and to the condition in which they will be left by such divorce, and to the party through whom the property was acquired, and to the burdens imposed upon it for the benefit of the children, and shall make provision for the guardianship, custody, and support and education of the minor children of such marriage.” This statute clearly recognizes the power of the court to burden the property for the benefit of children. Under this statute we have repeatedly held that jurisdiction of the court was a continuing one “so long as there is a minor child whose maintenance and welfare are provided for in the decree.” Poland v. Poland, 63 Wash. 597, 116 Pac. 2; Fickett v. Fickett, 39 Wash. 38, 80 Pac. 1134; Dyer v. Dyer, 65 Wash. 535, 118 Pac. 634. The power of the court is not confined to the imposition of a mere personal claim. King v. Miller, 10 Wash. 274, 38 Pac. 1020. In the absence of statutory inhibition, it is the general rule that such provisions for support do not necessarily terminate upon the father’s death. “A decree directing a father to provide for the support of his minor children until the further order of the court is hot necessarily discharged by his death; but upon the death of the mother to whom the allowance was directed to be paid the decree becomes ineffective and the husband’s duty to support the child becomes absolute.” 14 Cyc. 814. The more persuasive authorities support this view. In Miller v. Miller, 64 Me. 484, the decree of divorce gave the care and custody of the minor children to the mother, and contained a provision that the father pay a certain sum quarterly toward their support, to continue in force until the further order of the court. A bond was given to secure the performance of the decree. The supreme judicial court of Maine,' in a well considered opinion, held that the decree was not discharged by the father’s death, and that the bond was binding upon the surety notwithstanding the death of the principal. The court said: “The statute conferring jurisdiction in such cases is very comprehensive. It authorizes the court to make such a decree as the circumstances require. If, from hostility to the mother, or other cause, there is danger that the father will disinherit his children, and thus leave them to be supported by their mother without any aid from his estate, a decree may very properly be made for their support that shall continue in force after his decease, or until they are of sufficient age to provide for themselves; or at least till the further order of court. And if there is danger that the father will squander his property, or convey it away, so that none will be left for the decree to operate upon, he may very properly be required to give security. We do not controvert the position of the learned counsel for the defendant that, by the rules of the common law, a father is under no legal obligation to provide for the support of his children after his death. It may be that he can disinherit them and leave them to be supported by others. ‘I am surprised,’ said Lord Alvanley, ‘that this should be the law of any country, but I fear it is the law of England.’ 2 Kent’s Com., 10th ed., 225. But we think such can only be the law when the family relations remain intact, and when there is no great danger that such an arbitrary power will be exercised. We think that when, through the fault of the father, his family is broken up, and his own children become in one sense the wards of the court, this power is taken from him, and he may be compelled, if of sufficient ability, to give security for the support of his children that shall he binding upon his estate.” After a further discussion, showing the justness and humanity of such a rule, the court adds: “We are aware of no rule of law in conflict with this decision.” The fact that the security was given can make no difference. It is obvious that the surety was bound on his bond only because the estate of the principal was bound by the decree. Failing this, the bond would necessarily have been discharged, both as to principal and surety, by the death of the principal. It can hardly be claimed that the obligation of the surety extended beyond that of the principal. A distinction founded in the giving or requiring of security can rest on no sound basis. The provision for security is a difference in circumstance; not in principle. An appreciation of this fact makes the rule announced in the foregoing case, and also in Murphy v. Moyle, 17 Utah 113, 53 Pac. 1010, 70 Am. St. 767, clearly applicable here. In Murphy v. Moyle, under a statute which is quoted in the opinion, and which certainly confers no broader powers upon the court than our own, the supreme court of Utah held that a decree of absolute divorce, granting the mother the care and custody of children and adjudging that the father pay a certain sum annually toward their support “during the minority of said children,” was not discharged nor annulled by the death of the father. After quoting the statute, the court said: “This statute is broad and comprehensive. Under it the court has power to make such a decree as the circumstances may warrant, and doubtless, if there is danger of the father squandering the estate, or if, from hostility or other cause he is likely to refuse maintenance to his wife, or support to his children awarded to her, and thus leave the children to be supported by the mother without aid from his estate, the court may make such order, respecting the property and the support and maintenance of the wife and children, as is just and equitable, and such order or decree may be made to continue in force after his decease; and the court may afterward, if occasion shall require it, make such change in any decree as ‘will be conducive to the best interest of all parties concerned.’ The court may also properly require the husband to furnish security where there is danger that he will dispose of his property or squander it, so that nothing will remain upon which the decree can operate.” This was based distinctly upon the wording of the statute, and upon the fact that the divorce was absolute-and that there was no other limitation to the monthly payment for the support of the children than their minority. While the fact is also noted that the payments were made by the decree a Ken upon specific property, this was not the controUing circumstance, since it can hardly be contended that if there had been no continuing debt there could have been a continuing lien. There was nothing in the decree indicating, nor did the court hold, that the recovery for such payment would be limited alone to the security, if it had been insufficient, or that the exhaustion of the security would discharge the decree. The contrary is clearly inferable from the opinion. The court said: “The court had the right to enforce the former decrees, and foreclose the Ken upon failure of payment, and its power to do so was not affected by the death of the testate, and, if the proceeds shall be insufficient to satisfy the claim, it may enforce payment of the balance out of the estate: Miller v. Miller, 64 Me. 484; Storey v. Storey, 1 L. R. A. 320; Carson v. Murray, 3 Paige 483; Burr v. Burr, 7 Hill 207; Stratton v. Stratton, 52 Am. Rep. 779.” The power to decree a continuing security is traceable, of course, to the power to decree a continuing obligation to pay. If, therefore, the decree requires no security but does not limit the support to the Kfe of the husband but only to the life or minority of the child, it foKows that the provision for support is a continuing claim against the estate generally. In Schultze v. Schultze (Tex. Civ. App.), 66 S. W. 56, the authority chiefly relied upon by the appellant, the minor child received aK of the husband’s property by will. The proceeding by the mother was to obtain an allowance under a provision in the decree of divorce awarding her sums payable at stated intervals for the child’s support. Obviously, the allowance in such a case would have to be made from the child’s own property. While there is language in the opinion tending to support the appéKant’s contention that provisions for support or aKmony would not survive, the pecuKar circumstances of 'the case render the decision of Kttle value as a precedent. If there is any difference in principle between an award of alimony and an award for the support of a minor child, it is difficult to discover. The statute makes no distinction as to the power of the court, and they have the same status at common law and for the same reason. A husband’s duty to support the wife continued only during the continuance of the marriage tie. A father’s duty to support his minor child continued only during the life of the father. Hence at common law the decree in either case was discharged by the husband’s or father’s death. On grounds of a humane public policy, however, the difference, if there is any, is all in favor of the survival of the obligation to maintain minor children wherever a decree for alimony couched in similar terms would survive. The cases involving alimony are much divided, as is apparent from the comprehensive note to Wilson v. Hinman, 2 L. R. A. (N. S.) 232. We think, however, that under a statute such as ours, the weight of authority sustains the power of the court to make a decree for alimony which will survive the death of the husband. Seibly v. Person, 105 Mich. 584, 63 N. W. 528. Authority is not wanting that the making of a contract by the parties that a decree may be entered providing for the payment of alimony or for the support of minor children to continue after death of the father has the effect of giving the court power to make such a decree even if the court would not ordinarily possess that power under the statute. In Stratton v. Stratton, 77 Me. 373, 52 Am. Rep. 779, where a decree, made in accordance with an arbitration as to property rights, provided that alimony should be paid to the wife “during her natural life,” it was held that the power of the court to make such a decree, even in a suit by the husband, could not be disturbed' after the parties had submitted the matter to arbitration and the decree was based upon the report of the arbitrators. The court said: “This is undoubtedly true in cases where there is no waiver by the husband, of his strict legal rights, and the decree is made in opposition to his will. It may be conceded to be settled in this state that the jurisdiction and authority of the court, in matters pertaining to divorce, are derived from the provisions of the statute. Henderson v. Henderson, 64s Me. él9. But the court, being invested with jurisdiction in reference to alimony, there is nothing whereby parties are prohibited from entering into a proper agreement in reference thereto, or the court from rendering judgment in accordance with the agreement of the parties, which they have seen fit to make, as in other cases. In relation to such judgments, the court, in Fletcher v. Holmes, 25 Ind. 458, says: ‘It is well settled that a judgment by agreement of a court of competent general jurisdiction, having power in a proper case to render such judgment, and having the parties before it, will bind the parties, notwithstanding proceedings in a contested case would not authorize such judgment.’ ” In Wilson v. Hinman, supra, it was held that a decree that the husband pay alimony to the wife in installments “so long as she may live,” terminated with his death. The apparent conflict of this decision with earlier New York cases is explained by the court upon the ground that the statute had been changed so as to restrict the power of the court to the imposition of a personal obligation only, whereas formerly the statute permitted the binding of the husband’s property. Special stress is also laid upon the fact that the right of dower was not lost by the divorce, but still remained available to the wife upon the husband’s death, so that to hold the wife entitled to alimony after his death, would make her position better than that of a wife who had never been divorced. The court, however, makes the following statement, especially significant in view of the narrow terms of the New York statute: “It may very well be that by the agreement of the parties alimony might be awarded in a different form from that provided for in the statute; that it to say, the parties might agree that a gross sum should be paid as alimony, or that an allowance should be made to the wife which would bind the husband’s estate after his death. An agreement of that character would in no way contravene public policy, and the performance of it would, doubtless, be enforceable by the courts. It is on this ground that the decision in Storey v. Storey (125 111. 608) proceeded.” This language would clearly support the contract here involved as a surviving obligation. In Storey v. Storey, 125 Ill. 608, 18 N. E. 329, 8 Am. St. 417, 1 L. R. A. 320, a husband by consenting to a decree to pay alimony to his divorced wife, “so long as she may remain sole and unmarried,” was held to have subjected his estate to a debt continuing after his death. See, also, Carson v. Murray, 3 Paige Ch. (N. Y.) 483. There are doubtless many cases holding that a decree for the payment of alimony does not survive, but an analysis will show that many of them are based upon the fact that the decree was not for an absolute divorce, but merely for a separation. In such a case, the rule.of the common law would necessarily apply. For example, see Lockridge v. Lockridge, 3 Dana (Ky.) 28, 28 Am. Dec. 52. It seems to us that, both upon reason and authority, a contract such as here involved should be held to survive. There is no sound principle of public policy to the contrary. As bearing upon this phase of the case, we quote again from Murphy v. Moyle supra: “We cannot sanction appellant’s contention. It is unsound, as being at variance not only with the decrees of the court and the law, but also with justice for it is the solemn duty of every husband and father to support his wife during life, and his children during their minority, suitably to their station in life, and, if he fail to do so, every principle of justice demands that they be thus supported out of his estate.” Such a contract is no more in fraud of the heirs than if the same provisions were found in a will. No heir, as such, has a vested interest in an estate during the life of the owner. No one is heir to the living. The husband in this case made the contract while his property was his own, and there is no more reason why the contract should not create a valid claim against his estate than in case of any other contract which he might have made. It is no more in fraud of creditors than any other contract providing for future payments would have been. Not being declared a lien upon specific property, it has the same status as the claims of other creditors against the estate. It is a valid contract which may not be defeated by any testamentary disposition of the obligor’s property. We are convinced that it was the intention of the parties that the obligation of this contract should survive the husband’s death during the life and minority of the child. We are further convinced that, under our statute, a similar provision if contained in the decree of divorce would have been valid and surviving, and that neither such a decree nor such a contract contravenes any principle of public policy. The judgment is affirmed. Crow, C. J., Main, and Morris, JJ., concur.

Stafford, J. In these consolidated cases, we formulate guidelines for the exercise of discretion under ER 609(a)(1) and determine the appropriate harmless error standard for use under ER 609(a)(1). We affirm the Court of Appeals on a different ground with réspect to petitioner Jones, but reverse as to petitioner Young. The facts of each case will be dealt with separately. State v. Jones On April 23, 1981, Jones and a companion, Clarence Williams, were arrested shortly after police observed them moving various items of property from Williams' car into Jones' adjacent motel room. The property found in Jones' motel room matched the description of items reported stolen from two local residences earlier that day. A subsequent search of the motel room also disclosed property reported stolen from two other local residences earlier that month. In addition, the search revealed two pairs of pliers, one of which was later determined to have been used to gain entry to at least one of the burglarized homes. Jones was charged with four separate counts of second degree burglary. Prior to testifying at trial, Jones filed a motion in limine to exclude evidence of prior felony convictions for drug possession and carrying a concealed weapon. Jones contended that under ER 609(a)(1), the evidence was inadmissible because its probative value was outweighed by its prejudicial effect. The State countered by arguing that because lying is an integral facet of the criminal personality, Jones' criminal record necessarily reflected a propensity for lying. The trial court denied Jones' motion, ruling that the prosecution could introduce Jones' prior convictions if he denied them. Jones nevertheless took the stand in his own defense. He claimed he did not commit the burglaries and that the stolen property found in the motel room was acquired from Clarence Williams in exchange for drugs. Jones also suggested the police "planted" the pliers in his room. On direct examination, he acknowledged one prior felony conviction. On cross examination, and over defense objection, the prosecutor elicited an admission of two prior felony convictions as well as the particular circumstances of each conviction. The jury returned guilty verdicts on all four counts of second degree burglary. The Court of Appeals affirmed, reasoning that even if the admission of Jones' prior convictions was error (which the Court of Appeals did not expressly decide), it was harmless under the nonconstitu-tional standard of State v. Cunningham, 93 Wn.2d 823, 831, 613 P.2d 1139 (1980). State v. Jones, 33 Wn. App. 372, 375-77, 656 P.2d 510 (1982), review granted, 99 Wn.2d 1009 (1983). State v. Young On September 20, 1980, two men entered a Snohomish County residence, threatened the four occupants with what appeared to be a pistol, and stole a safe. Two weeks later, the State charged Darryl Young and Thomas Diamont with first degree robbery. Diamont was never apprehended. Prior to trial, Young filed a motion in limine to exclude evidence of his prior convictions. Young had been convicted of grand larceny in 1970, forgery and credit card theft in 1974, and attempted escape in 1977. The trial court held the 1970 conviction was too remote and thus inadmissible. The State was permitted to present evidence of the other convictions, however, for purpose of impeachment under ER 609(a)(1). The court concluded, "the probative value of these [three] convictions substantially outweighs any remote prejudicial effect that might result." At trial, Young presented an alibi defense. On direct examination, he admitted his prior convictions of forgery and grand larceny. On cross examination, the prosecutor elicited an acknowledgment of the attempted escape and credit card theft convictions. As with Jones, the trial court instructed the jury, in accordance with WPIC 5.05, that evidence of a defendant's prior convictions could be considered only in determining defendant's credibility as a witness. The jury returned a guilty verdict. The Court of Appeals affirmed in an unpublished opinion. We reverse. I We must first determine whether the respective trial courts erred in permitting the State to impeach petitioners' credibility with evidence of their prior convictions under ER 609(a)(1). In 1979, this court adopted ER 609, superseding former RCW 10.52.030. See 91 Wn.2d 1117, 1149 et seq. (1979). The language of ER 609(a) was taken verbatim from the federal Rule of Evidence 609. See Fed. R. Evid. 609, 28 U.S.C. 563. ER 609(a) provides: For the purpose of attacking the credibility of a witness, evidence that he has been convicted of a crime shall be admitted if elicited from him or established by public record during cross-examination but only if the crime (1) was punishable by death or imprisonment in excess of 1 year under the law under which he was convicted, and the court determines that the probative value of admitting this evidence outweighs its prejudicial effect to the defendant, or (2) involved dishonesty or false statement, regardless of the punishment. (Italics ours.) Prior to 1979, we recognized that a defendant's past convictions were relevant to his or her credibility as a witness. See State v. Ruzicka, 89 Wn.2d 217, 226, 570 P.2d 1208 (1977). Moreover, a trial judge had no discretion to refuse evidence of a prior conviction; admission was mandatory, regardless of whether the prior conviction was for a felony or misdemeanor offense. See former RCW 10.52.030, footnote 1 above; see also State v. Ruzicka, supra; State v. Robinson, 75 Wn.2d 230, 450 P.2d 180 (1969). With the adoption of ER 609, we established significant restrictions on the use of prior conviction evidence. See State v. Alexis, 95 Wn.2d 15, 621 P.2d 1269 (1980). As set forth in State v. Burton, 101 Wn.2d 1, 676 P.2d 975 (1984), ER 609 establishes two categories of prior convictions which may be admitted to impeach a defendant's credibility as a witness. First, if a prior conviction involves a crime of "dishonesty or false statement", it is automatically admissible under ER 609(a)(2). The trial judge has no discretion and the rule applies regardless of whether the prior conviction was for a felony or misdemeanor offense. See State v. Burton, supra. In Burton, we adopted a narrow definition of the word "dishonesty" as used in ER 609(a)(2). Only those crimes, felony or misdemeanor, which have a direct bearing on the defendant's ability to testify truthfully are automatically admissible to impeach a defendant witness. Prior felony convictions for crimes which do not contain an element of deceit, fraud, or false swearing, are admissible only under the discretionary standard of ER 609(a)(1). Second, under subsection (a)(1), a prior felony conviction for an offense not involving "dishonesty or false statement" is admissible only if the trial court first determines that "the probative value of admitting this evidence outweighs its prejudicial effect to the defendant". ER 609(a)(1). This required balancing process injects an important element of discretion which was lacking under previous Washington law. As was noted in the Comment to ER 609, 91 Wn.2d 1150 (1979): Rule 609 offers a balance between the right of the accused to testify freely in his own behalf and the desirability of allowing the State to attack the credibility of the accused who chooses to testify. . . . Section (a) . . . narrows the scope of convictions which may be used to impeach the accused in a criminal case. RCW 10.52.030, which is superseded by the rule, did not contain the restrictions expressed in section (a). The question before this court is one of clarifying and delineating the proper standards to be used in exercising the discretionary authority granted under ER 609(a)(1). At the outset, we reiterate what was previously emphasized in both Burton and Alexis. When exercising the discretionary authority granted under ER 609(a)(1), a trial court must bear in mind at all times that the sole purpose of impeachment evidence is to enlighten the jury with respect to the defendant's credibility as a witness. Therefore, prior convictions admitted for the purpose of impeachment must have some relevance to the defendant's ability to tell the truth. See United States v. Smith, 551 F.2d 348 (D.C. Cir. 1976); State v. Burton, supra; State v. Alexis, supra. Simply because a defendant has committed a crime in the past does not mean the defendant will lie when testifying. In these consolidated cases the State argues that because lying is an integral facet of the criminal personality, all prior convictions are per se admissible. We disagree. In State v. Alexis, supra, we clearly rejected any per se rule for the admissibility of prior conviction evidence. See also State v. Moore, 29 Wn. App. 354, 628 P.2d 522 (Moore I), review denied, 96 Wn.2d 1003 (1981); State v. Moore, 33 Wn. App. 55, 651 P.2d 765 (1982) (Moore II). ER 609(a)(1) requires the exercise of discretion. Moreover, crimes which are not automatically admissible as crimes involving "dishonesty or false statement" under ER 609(a)(2) must have some relevance to the defendant's ability to testify truthfully. There has been an abundance of scholarly debate on the issue of impeachment by prior convictions, with many scholars advocating the demise of rule 609 in favor of a strict nonadmissibility policy, or at least a severely restrictive admissibility standard. See, e.g., Spector, Rule 609: A Last Plea for Its Withdrawal, 32 Okla. L. Rev. 334, 338 (1979); Note, Impeachment Under Rule 609(a): Suggestions for Confining and Guiding Trial Court Discretion, 71 Nw. U. L. Rev. 634 (1976). The controversy which surrounds Fed. R. Evid. 609 stems in large part from the sharply conflicting policy interests at stake in the admission of prior conviction evidence. In weighing the probative value of prior conviction evidence against its prejudicial effect, a trial court must ultimately weigh the importance of the jury hearing the defendant's side of the story against a defendant's opportunity to unfairly misrepresent his criminal record. See Luck v. United States, 348 F.2d 763 (D.C. Cir. 1965); United States v. Jackson, 405 F. Supp. 938 (E.D.N.Y. 1975); State v. Alexis, supra at 19. A criminal defendant has a constitutional right to testify freely in his own defense. U.S. Const. amend. 6; Griffin v. California, 380 U.S. 609, 14 L. Ed. 2d 106, 85 S. Ct. 1229 (1965). See also Const. art. 1, § 22; State v. Hudlow, 99 Wn.2d 1, 659 P.2d 514 (1983). The admission of a defendant witness' prior convictions may well adversely affect that defendant's decision to take the stand. See Note, To Take the Stand or Not To Take the Stand: The Dilemma of the Defendant With a Criminal Record, 4 Colum. J.L. & Soc. Probs. 215, 218 (1968). The defendant's fears are well founded. Federal courts have consistently recognized that prior conviction evidence is inherently prejudicial. See, e.g., United States v. Martinez, 555 F.2d 1273, 1276 (5th Cir. 1977); United States v. Smith, 551 F.2d 348 (D.C. Cir. 1976). Statistical studies have shown that even with limiting instructions, a jury is more likely to convict a defendant with a criminal record. H. Kalven & H. Zeisel, The American Jury 146, 160-69 (1966). It is difficult for the jury to erase the notion that a person who has once committed a crime is more likely to do so again. The prejudice is even greater when the prior conviction is similar to the crime for which the defendant is being tried. State v. Pam, 98 Wn.2d 748, 760, 659 P.2d 454 (1983) (Utter, J., concurring). The danger of prior conviction evidence is its tendency to shift the jury's focus from the merits of the charge to the defendant's general propensity for criminality. To offset this inherent prejudice, both Congress and this court set forth the requirement that trial courts weigh the probative value of prior conviction evidence against the obvious prejudice. The burden is on the State to show that the probative value is greater. United States v. Smith, supra; United States v. Gross, 603 F.2d 757 (9th Cir. 1979); see also United States v. Cook, 608 F.2d 1175, 1194 (9th Cir. 1979) (Hufstedler, J., concurring in part/dissenting in part), cert. denied, 444 U.S. 1034 (1980). The State's burden is a difficult one as few prior offenses that do not involve crimes of dishonesty or false statement are likely to be probative of a witness' veracity. United States v. Cook, supra, citing United States v. Hawley, 554 F.2d 50, 52 (2d Cir. 1977). Nevertheless there are several factors which a trial court should consider in determining the probative value of prior conviction evidence. As we noted above, the most important consideration in determining the probative value of prior conviction evidence is the necessity of hearing the defendant's side of the story. In general, the weaker the State's case, the more crucial it is for the defendant's side of the story to be heard. See United States v. Brown, 409 F. Supp. 890 (W.D.N.Y. 1976). Moreover, the trial court should consider whether the defendant is the only one who can testify in his or her defense. See State v. Alexis, supra. At the same time, however, the more crucial the defendant's testimony, the more crucial it is that the jury not be misled as to the defendant's credibility. "Normally the court should err on the side of excluding a challenged prior conviction, with a warning to the defendant that any misrepresentation of his background on the stand will lead to admission of the conviction for impeachment purposes." United States v. Cook, supra at 1187 (en banc opinion). See also United States v. Jackson, supra. There are other important factors for the trial court to consider: (1) the type of crime — crimes of violence are not usually probative of the defendant's propensity to lie. United States v. Hayes, 553 F.2d 824 (2d Cir.), cert. denied, 434 U.S. 867 (1977). See also United States v. Smith, supra; (2) the remoteness of the prior conviction— the older the conviction, the less probative it is of the defendant's credibility. United States v. Hayes, supra; (3) the similarity of the prior crime — the greater the similarity, the greater the possible prejudice. See State v. Pam, supra; (4) the age and circumstances of the defendant — was the defendant very young, were there extenuating circumstances?; (5) whether the defendant testified at the previous trial — if the defendant did not testify, the prior conviction has less bearing on veracity. United States v. Hayes, supra; (6) the length of the defendant's criminal record — unnecessarily cumulative prior convictions are more prejudicial. Cf. State v. Hanscome, 459 A.2d 569 (Me. 1983) (prejudicial effect of 11 prior convictions so great that trial court properly excluded all but those admissible as crimes of dishonesty). In each case the balancing procedure must be followed. State v. Alexis, supra. Moreover, it is imperative that this balancing process be meaningful. In State v. Thompson, 95 Wn.2d 888, 893, 632 P.2d 50 (1981), we held that a trial court need not state its reasons for admitting evidence under ER 609(a)(1). The Thompson opinion suggested to some observers that as long as a trial court states that it weighed the probative value of the prior conviction evidence against its prejudicial effect, the trial court did not err. See, e.g., State v. Latham, 30 Wn. App. 776, 638 P.2d 592 (1981). As in Thompson, neither the trial court in Jones nor the trial court in Young expressly considered any balancing factors before making its decision. Although we held the trial court in Thompson did not commit error by failing to articulate its reasons for exercising discretion under ER 609(a)(1), we declared that in the future "it would be helpful for the trial judge to articulate the reasons." Thompson, at 893. Since Thompson was issued, several Court of Appeals opinions have expressly found that a trial court need not state on the record its reason for exercising discretion under ER 609(a)(1). See, e.g., State v. Turner, 35 Wn. App. 192, 665 P.2d 923 (1983); State v. Latham, supra. Without a statement of reasons demonstrating that the trial court did engage in a balancing analysis it is impossible for an appellate court to evaluate the trial court's decision. Therefore, what was suggested in Thompson, we now make mandatory: that is, a trial court must state, for the record, the factors which favor admission or exclusion of prior conviction evidence. In Jones, the State sought to admit evidence of petitioner's prior out-of-state felony convictions for carrying a concealed weapon and for possession of drugs. In the abstract, these convictions have little to do with a defendant's credibility as a witness in a trial for second degree burglary and therefore, the probative value is minimal. The trial court concluded only that the probative value substantially outweighed the prejudicial effect. There is no record the trial court considered any balancing factors in reaching this conclusion. Thus, we have no way of knowing whether the trial court effectively exercised its discretion or whether the State met its burden. We therefore hold that the trial court erred in admitting evidence of Jones' prior felony convictions without first articulating on the record its reasons for doing so. Likewise, in Young, the trial court failed to articulate its reasons for admitting petitioner's prior convictions other than to conclude summarily that the probative value of the convictions outweighed the prejudicial effect. The trial court properly excluded Young's 1970 larceny conviction as being too remote under ER 609(b); however, the court did admit his convictions for forgery, credit card theft and attempted escape. While Young's forgery conviction may be a crime of dishonesty under ER 609(a)(2), see State v. Burton, supra, his theft and attempted escape convictions have very minimal probative value with respect to the petitioner's propensity for truthfulness. Again we have no way of evaluating the propriety of the trial court's action. The State bears the burden of affirmatively showing some probative value. See United States v. Gross, supra. There is no indication here that the State met that burden. We therefore hold that the trial court erred in admitting Young's prior convictions. We take this opportunity to reassert what we said in State v. Alexis, 95 Wn.2d 15, 20, 621 P.2d 1269 (1980): A prosecutor should expect to prevail on the strength of the evidence in the particular case being tried. That does not always follow when prior convictions are admitted, even when a cautionary instruction of the court restricts the use of the evidence to impeachment of credibility. Having determined that the trial courts in both Jones and Young erred in admitting the prior conviction evidence and in failing to first articulate on the record the reasons for so admitting it, we must now determine whether the error is nevertheless harmless. II In State v. Jones, 33 Wn. App. 372, 377, 656 P.2d 510 (1982), the Court of Appeals concluded that both federal and state precedent support the view that an error in admitting evidence under rule 609 should be governed by the broad nonconstitutional standard of harmless error. That test requires that an error be found harmless unless, within reasonable probability, the error materially affected the outcome of the trial. State v. Cunningham, 93 Wn.2d 823, 831, 613 P.2d 1139 (1980). To support its decision, the Court of Appeals cites several recent decisions of this court which hold that errors in admitting "other crimes" evidence under ER 404(b) should be governed by the nonconstitutional harmless error standard. See State v. Saltarelli, 98 Wn.2d 358, 362, 655 P.2d 697 (1982); State v. Robtoy, 98 Wn.2d 30, 44, 653 P.2d 284 (1982). The Court of Appeals also cites several federal court of appeals decisions which have reached a similar view with respect to Fed. R. Evid. 609. See, e.g., United States v. Glenn, 667 F.2d 1269 (9th Cir. 1982); United States v. Slade, 627 F.2d 293, 308 (D.C. Cir. 1980). Of the federal cases cited, only Slade expressly adopts a nonconstitutional standard, however. While there is apparent authority to support the Court of Appeals decision in Jones, we note that unlike ER 404(b), ER 609(a)(1) has a direct effect on a defendant's constitutional right to testify in his own defense. U.S. Const. amend. 6; Const. art. 1, § 22. We previously recognized the importance of this right in State v. Hill, 83 Wn.2d 558, 520 P.2d 618 (1974). Although that case involved the improper admission of two prior convictions, both of which were reversed on appeal, we clearly emphasized the importance of the right to testify in one's own behalf. Hill, at 563-66. In light of the constitutional significance of this right and the inherent prejudicial nature of prior conviction evidence, we adopt the higher "constitutional" harmless error analysis for errors involving the admission of evidence under ER 609(a)(1). Ill Under the constitutional harmless error analysis, the error must be harmless beyond a reasonable doubt. See, e.g., Chapman v. California, 386 U.S. 18, 24, 17 L. Ed. 2d 705, 87 S. Ct. 824, 24 A.L.R.3d 1065 (1967); State v. Stephens, 93 Wn.2d 186, 191, 607 P.2d 304 (1980). This court has vacillated between two alternative analyses in determining whether error is harmless beyond a reasonable doubt. State v. Johnson, 100 Wn.2d 607, 621, 674 P.2d 145 (1983); see State v. Evans, 96 Wn.2d 1, 5-10, 633 P.2d 83 (1981) (Brachtenbach, C.J., concurring). Under the "contribution test", the focus is on the tainted evidence and the relevant question is whether that evidence contributed to a guilty verdict. The untainted evidence is considered "only to uncover the potentially damaging ramifications of the error". Field, Assessing the Harmlessness of Federal Constitutional Error—A Process in Need of a Rationale, 125 U. Pa. L. Rev. 15, 18 (1976). Under the "overwhelming evidence test", the appellate court examines the untainted evidence to determine whether it is so overwhelming that it necessarily leads to a finding of guilt. We need not decide in this case which of these tests is most appropriate as we find, under either test, the evidence of prior convictions is harmless error in Jones and is not harmless error in Young. In Jones, even under the stricter contribution test, we are convinced beyond a reasonable doubt that the admission of the prior convictions did not contribute to the conviction. Neither prior conviction bore any similarity to the crime for which Jones was being tried. Nor were the number of convictions introduced exceedingly large or cumulative. We also find that the jury had overwhelming evidence from which to convict petitioner Jones. Not only was the stolen property found in petitioner's possession, but police found a pair of pliers which proved to be identical with those used in the robbery. Moreover, the police observed Jones carrying the stolen property into his motel room. The State notes that in another trial petitioner Jones admitted he had perjured himself when testifying at the instant trial. We emphasize, however, that this fact, volunteered at a subsequent trial, is not relevant to this court's consideration of whether the trial court erred in admitting his prior convictions for impeachment purposes under ER 609(a)(1). The trial court's error is harmless beyond a reasonable doubt. With respect to petitioner Young, we find the admission of his prior convictions was not harmless beyond a reasonable doubt. Young explained, in his defense, that his admitted concern over the armed robbery was due to his having told his roommate, Thomas Diamont, about the existence of the safe and did not stem from any direct involvement on his part. Young further explained that he had been fishing on Whidbey Island the day of the robbery. The admission of Young's prior convictions may well have colored the jury's consideration of his testimony. Further, the credit card theft conviction bore some similarity to the crime for which Young was being tried, hence the potential for prejudice was increased. We are not convinced beyond a reasonable doubt the admission of these prior convictions did not contribute to the guilty verdict. Further, while there is considerable evidence from which to find petitioner Young guilty, the untainted evidence was not so overwhelming as to necessarily lead to a finding of guilt. It is not an answer to our harmless error analysis that because Young's prior conviction for forgery was properly admissible, the improper admission of his other prior convictions was harmless. The more prior convictions admitted for impeachment under ER 609(a)(2), the greater the effect on the defendant's credibility. Cf. State v. Hanscome, 459 A.2d 569 (Me. 1983). We therefore remand for a new trial consistent with this opinion. Having ordered a new trial, we need not address petitioner's other assignments of error. The Court of Appeals is affirmed in its result with respect to petitioner Jones and reversed with respect to petitioner Young. Williams, C.J., and Rosellini, Utter, Brachtenbach, Dolliver, Dore, Dimmick, and Pearson, JJ., concur. Reconsideration denied March 21, 1984. RCW 10.52.030. "Convict as witness. Every person convicted of a crime shall be a competent witness in any civil or criminal proceeding, but his conviction may be proved for the purpose of affecting the weight of his testimony, either by the record thereof, or a copy of such record duly authenticated by the legal custodian thereof, or by other competent evidence, or by his cross-examination, upon which he shall answer any proper question relevant to that inquiry, and the party cross-examining shall not be concluded by his answer thereto."

Dolliver, J. May lawyers be subject to liability under the Consumer Protection Act (CPA), RCW 19.86? Defendant Chris Demopolis appeals the Superior Court order which dismissed his counterclaims under CR 12(b)(6) for CPA violations against the plaintiffs' law firm of Short and Cressman. In March 1980, Demopolis met with Douglas Hartwich, partner in plaintiffs’ law firm, to discuss representation in two pending lawsuits. The first involved dissolution of a real estate partnership. The complaint alleged damages in excess of $200,000. After 2 days of trial, the action settled for $7,500. Attorney fees totaled $19,958.53. The second case involved a real estate forfeiture action. Defendant prevailed and was entitled to immediate possession of the premises, rental delinquencies, and damages. A dispute ensued over the rendering of legal services. Defendant contends he hired Hartwich to handle personally his legal matters but that without his consent or knowledge Hartwich had a younger partner (Ferrell) and an associate (Mayotte) do the legal work. Plaintiffs maintain Hartwich personally introduced Ferrell and Mayotte to Demopolis, that he told Demopolis they would be handling the cases, and that Demopolis agreed to this arrangement. The parties also contest the payment of attorney fees. Defendant asserts he rejected plaintiffs' first bill and made a final settlement of $14,000. The second bill for $29,122.80 is considered excessive by defendant as he holds numerous grievances with the quality of representation. Plaintiffs state they attempted to obtain payment from Demopolis but were unsuccessful. Subsequent to filing a notice of intent to withdraw in August 1980, but before the effective date, plaintiffs maintain they entered into an agreement with Demopolis. In a letter dated September 3, 1980, Hartwich wrote Demopolis confirming (1) plaintiffs' acceptance of $14,000 as full payment for the partnership matter; (2) withdrawal of their notice to withdraw; (3) plaintiffs' intent to bill at their regular hourly rates for time expended on the second case; and (4) noting "You will be working on the [second] case directly with Don Ferrell and Jim Mayotte, as was the case in the partnership action." A handwritten statement, signed by Demopolis, to hold Short and Cressman harmless for the release of trust funds totaling $3,025.35 held by them for Demopolis' former attorney is on the first page of this letter. However, Demopolis' affidavit states he never received the original or a copy of the letter; he only agreed to hold plaintiffs harmless for the release of trust funds, and was not told he was waiving any legal rights to complain about the fees or the handling of the first case. Plaintiffs sued Demopolis for breach of an express contract to pay for legal services. Demopolis denied liability and asserted affirmative defenses and counterclaims. He alleged 10 causes of action: (1) unfair and deceptive practices in violation of the Consumer Protection Act, RCW 19.86; (2) breach of contract; (3) violation of Code of Professional Responsibility DR 2-106 (excessive fees); (4) violation of CPR DR 6-101 (incompetence); (5) negligence and malpractice; (6) fiduciary duty violations; (7) misrepresentation; (8) violation of CPR DR 2-110 (threat to withdraw) causing mental distress; (9) reformation of contract; and (10) attorney fees assessment. Plaintiffs moved for summary judgment which was denied, except for defendant's claim for emotional distress damages which was dismissed. Subsequently, and before a second judge, plaintiffs made a CR 12(b)(6) motion to dismiss defendant's 1st, 3rd, 4th, 8th, and 10th causes of action. This latter motion was granted and the counterclaims were dismissed with prejudice. Three reasons were cited for dismissing defendant's counterclaims for CPA violations. First, the practice of law did not constitute the conduct of any trade or commerce within the meaning of the CPA or Washington case law. Second, to regulate the legal profession through the CPA was an unconstitutional infringement on the power of the judiciary to regulate the practice of law. Third, other adequate remedies (breach of contract and malpractice) were available. Defendant was granted direct discretionary review and assigns error to the dismissal of his CPA violation counterclaims pursuant to CR 12(b)(6) ("failure to state a claim upon which relief can be granted"). I The first issue we consider is whether the practice of law falls within "trade or commerce" as that term is defined by RCW 19.86. RCW 19.86.020 provides: Unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce are hereby declared unlawful. "'Trade' and 'commerce' shall include the sale of assets or services, and any commerce directly or indirectly affecting the people of the state of Washington." RCW 19.86.010(2). The trial court, relying on Lightfoot v. MacDonald, 86 Wn.2d 331, 544 P.2d 88 (1976), interpreted the CPA as exempting the practice of law. In Lightfoot, a client allegedly suffered damages as a result of her attorney's nonfea- sanee. We disallowed her CPA claim because of her failure to show sufficient public impact. 86 Wn.2d at 338-39. A breach of a private contract affecting no one but the parties to the contract, whether that breach be negligent or intentional, is not an act or practice affecting the public interest. 86 Wn.2d at 334. In dictum we "implicitly recognized the lack of precedent for the concept that the legal profession is involved in trade and commerce ..." 86 Wn.2d at 338. Subsequent case law does not appear finally to have answered the question. See Anhold v. Daniels, 94 Wn.2d 40, 47-48, 614 P.2d 184 (1980) (Rosellini, J., concurring) ("[w]hether the lawyer [MacDonald] who was sued in that action was engaged in 'trade or commerce' was a question which we left unanswered"); Salois v. Mutual of Omaha Ins. Co., 90 Wn.2d 355, 361, 581 P.2d 1349 (1978) ("Light-foot is correct on its facts in that there was a failure to show that the private dispute affected the public interest or was within the sphere of trade or commerce . . ."); Bowers v. Transamerica Title Ins. Co., 100 Wn.2d 581, 591-92, 675 P.2d 193 (1983) (unauthorized practice of law by employees of an escrow agent is a violation of the CPA). The CPA contains no language expressly including or excluding attorneys from its purview. The act, however, contains its own guide to statutory construction. RCW 19.86.920 provides: The legislature hereby declares that the purpose of this act is to complement the body of federal law governing restraints of trade, unfair competition and unfair, deceptive, and fraudulent acts or practices in order to protect the public and foster fair and honest competition. It is the intent of the legislature that, in construing this act, the courts be guided by final decisions of the federal courts . . . interpreting the various federal statutes dealing with the same or similar matters and that in deciding whether conduct restrains or monopolizes trade or commerce ... To this end this act shall be liberally construed that its beneficial purposes may be served. (Italics ours.) Some earlier cases from the United States Supreme Court seem by dictum to have recognized a "learned professions" exemption to the antitrust laws. This exemption was based on judicial interpretations of what constituted a trade — " [w] her ever any occupation, employment, or business is carried on for the purpose of profit, or gain, or a livelihood, not in the liberal arts or in the learned professions ..." Atlantic Cleaners & Dyers, Inc. v. United States, 286 U.S. 427, 436, 76 L. Ed. 1204, 52 S. Ct. 607 (1932). See Annot., "Learned Profession" Exemption in Federal Antitrust Laws (15 U.S.C. §§ 1 et seq.), 39 A.L.R. Fed. 774 (1978). The question as to whether there could be restraint of "trade or commerce" when the activities restrained were the professional activities of members of a "learned profession" was not reached until Goldfarb v. Virginia State Bar, 421 U.S. 773, 44 L. Ed. 2d 572, 95 S. Ct. 2004 (1975). In Goldfarb, the United States Supreme Court held minimum fee schedules, published by a county bar association and enforced by the state bar, violated the Sherman Act, 15 U.S.C. § 1 (1976). The bar association argued immunity under the Sherman Act because the practice of law was a learned profession — not trade or commerce. The association maintained competition was inconsistent with the practice of a profession because enhancing profit was not the goal of professional activities; the goal was to provide community services. 421 U.S. at 786. The Court said neither the nature of an occupation in and of itself nor the claim of public service controlled in determining whether section 1 included performance. The Court went on to state: The language of § 1 of the Sherman Act, of course, contains no exception. . . . And our cases have repeatedly established that there is a heavy presumption against implicit exemptions . . . Indeed, our cases have specifically included the sale of services within § 1. . . . Whatever else it may be, . . . the exchange of such a service for money is "commerce" in the most common usage of that word. It is no disparagement of the practice of law as a profession to acknowledge that it has this business aspect ... In the modern world it cannot be denied that the activities of lawyers play an important part in commercial intercourse, and that anticompetitive activities by lawyers may exert a restraint on commerce. (Footnote omitted.) 421 U.S. at 787-88. (Cf., however, footnote 17, where the Goldfarb Court acknowledged " [i]t would be unrealistic to view the practice of professions as interchangeable with other business activities . . 421 U.S. at 788 n.17.) See Bates v. State Bar of Ariz., 433 U.S. 350, 371-72, 53 L. Ed. 2d 810, 97 S. Ct. 2691 (1977) ("the belief that lawyers are somehow 'above' trade has become an anachronism . . ."). Federal courts generally have refused to adopt a blanket immunity for the "learned professions". The issue of whether a profession is a learned one is not seen by the Court as the appropriate approach for resolving the higher question of whether the Sherman Act is applicable to that profession. To engage in such an inquiry would chart the Court on a semantic adventure of questionable value. It would be a dangerous form of elitism, indeed, to dole out exemptions to our antitrust laws merely on the basis of the educational level needed to practice a given profession, or for that matter, the impact which the profession has on society's health and welfare. Clearly, the more appropriate and fairer course is to examine the nature and conduct involved in the profession on a case by case basis together with the context in which it is practiced. United States v. National Soc'y of Professional Eng'rs, 389 F. Supp. 1193, 1198 (D.D.C. 1974). See, e.g., Arizona v. Maricopa Cy. Med. Soc'y, 457 U.S. 332, 73 L. Ed. 2d 48, 102 S. Ct. 2466 (1982) (fact that doctors, rather than nonprofessionals, were parties to price fixing agreement did not exempt them from Sherman Act); National Soc'y of Professional Eng'rs v. United States, 435 U.S. 679, 55 L. Ed. 2d 637, 98 S. Ct. 1355 (1978) (difference between professional and other business services does not create a broad exemption under the Rule of Reason for learned professions); Northern Cal. Pharmaceutical Ass'n v. United States, 306 F.2d 379 (9th Cir.), cert. denied, 371 U.S. 862 (1962) (pharmacists had no defense to price fixing on ground it was done by professionals); Mardirosian v. American Inst. of Architects, 474 F. Supp. 628 (D.D.C. 1979) (architects subject to antitrust laws); United States Dental Inst. v. American Ass'n of Orthodontists, 396 F. Supp. 565 (N.D. Ill. 1975) (practice of dentistry and orthodontia does not fall outside the ambit of trade or commerce); AMA v. FTC, 455 U.S. 676, 71 L. Ed. 2d 546, 102 S. Ct. 1744 (1982) (per curiam) (equally divided Court affirmed 638 F.2d 443 (2d Cir. 1980)). While federal courts have rejected professional immunity from the antitrust laws, state courts are split on this issue in construing their consumer protection laws. See, e.g., Ivey, Barnum & O'Mara v. Indian Harbor Properties, Inc., 190 Conn. 528, 461 A.2d 1369 (1983) (client's counterclaim that law firm engaged in unfair trade act or practice by attempting to collect debt which it knew was not due and owing lacked "nexus with the public interest" and was properly dismissed); Heslin v. Connecticut Law Clinic of Trantolo & Trantolo, 190 Conn. 510, 461 A.2d 938 (1983) (unfair trade practices act, which regulates "the conduct of any trade or commerce", does not totally exclude all conduct of the profession of law); Frahm v. Urkovich, 113 Ill. App. 3d 580, 447 N.E.2d 1007 (1983) (legislature's use of "trade or commerce" in defining application of consumer fraud and deceptive business practices act was not meant to include the actual practice of law); Reed v. Allison & Perrone, 376 So. 2d 1067 (La. Ct. App. 1979) (advertising of legal services is clearly a "trade" or "commerce" under unfair trade practices and consumer protection law); Matthews v. Berryman, 196 Mont. 49, 637 P.2d 822 (1981) (attorney who told clients he would withdraw as counsel, unless they signed security agreement, held not to have committed unfair trade practices); Lucas v. Nesbitt, 653 S.W.2d 883 (Tex. Ct. App. 1983) (evidence was insufficient to support finding that attorney's conduct in billing client four times the amount he testified to under oath constituted a deceptive trade practice); Barnard v. Mecom, 650 S.W.2d 123 (Tex. Ct. App. 1983) (attorney's failure to release $5,000 worth of trust funds or pursue lawsuit held to violate deceptive trade practices act); DeBakey v. Staggs, 605 S.W.2d 631 (Tex. Civ. App. 1980) (purchase or acquisition of legal services covered by deceptive trade practices act), aff'd, 612 S.W.2d 924 (Tex. 1981). Defendant urges a literal interpretation of the express language of the CPA. He contends attorneys sell "assets" and "services". RCW 19.86.010(2). Hence, their conduct falls within the trade or commerce provision of RCW 19.86.020. Defendant states the purposes of the act, i.e., protection of the public from unfair or deceptive acts or practices, are served by its application to lawyers. RCW 19.86.920. He distinguishes Lightfoot v. MacDonald, 86 Wn.2d 331, 544 P.2d 88 (1976), as it never addressed whether an attorney's conduct was part of trade or commerce. Rather, Lightfoot is deemed the court's first attempt to articulate a theory which excluded from the act purely private disputes. Plaintiffs, however, assert that, as RCW 19.86 was adopted virtually verbatim from federal antitrust laws, the Legislature is presumed to have intended "trade or commerce" to be interpreted in accordance with then-existing construction of that term under federal law. Since before 1961, federal law did not consider the learned professions to be part of trade or commerce, ergo, the practice of law cannot constitute trade or commerce under the CPA. Plaintiffs distinguish Goldfarb v. Virginia State Bar, 421 U.S. 773, 44 L. Ed. 2d 572, 95 S. Ct. 2004 (1975) as dealing with commercial aspects of the legal profession, and not with the practice of law itself. Guided by the legislative prescription to follow federal law (see discussion in Heslin v. Connecticut Law Clinic, 190 Conn. at 517-21) and to construe liberally the CPA, RCW 19.86.920, we hold that certain entrepreneurial aspects of the practice of law may fall within the "trade or commerce" definition of the CPA. The more recent federal cases stand for the principle that attorneys, as well as other professionals, are not exempt from antitrust laws. The CPA, on its face, shows a carefully drafted attempt to bring within its reaches every person who conducts unfair or deceptive acts or practices in any trade or commerce. RCW 19.86.010(1) and (2); RCW 19.86.020. Goldfarb v. Virginia State Bar, supra at 787-88. There is no statutory exemption for lawyers. Cf. RCW 19.86.060; RCW 19.86.070; RCW 19.86.170. Moreover, to limit our interpretations to the inconclusive dictum of pre-1961 federal case law relative to the "learned profession" seems totally contrary to the legislative directive that the CPA be construed liberally. RCW 19.86.920. Defendant's counterclaims do not principally attack the actual performance of Short and Cressman's legal advice and services. Nor is defendant urging that plaintiff attorneys be reprimanded, suspended, or disbarred. Rather, defendant's counterclaims primarily challenge the entrepreneurial aspects of legal practice — how the price of legal services is determined, billed, and collected and the way a law firm obtains, retains, and dismisses clients. These business aspects of the legal profession are legitimate concerns of the public which are properly subject to the CPA. However, a few of defendant's claims as a matter of law are outside the purview of the CPA and were properly dismissed by the trial court. CR 12(b)(6). Defendant alleges plaintiffs' law firm neglected properly to gather essential facts and evaluate the dissolution of his real estate partnership such that settlement was untimely; to pursue claims against defendant's opponents causing him a loss of valuable rights; and failed in a timely manner to file a judgment in the second action. Defendant also claims that the judgment finally entered was defective in failing to hold one of defendant's opponents liable. These claims are not chiefly concerned with the entrepreneurial aspects of legal practice; rather, they concern the actual practice of law. Since these claims are directed to the competence of and strategy employed by plaintiffs' lawyers, they amount to allegations of negligence or malpractice and are exempt from the CPA. In reaching this result, we are cognizant of the important public policy interests at stake. Current remedies available to the victims of professional malpractice or misconduct have shortcomings. Comment, The Washington Consumer Protection Act vs. The Learned Professional, 10 Gonz. L. Rev. 435, 436 (1975). Most actions are expensive and difficult to prove. "The injured client can take little comfort from the fact that the wrongdoer has been reprimanded or suspended or stripped of the right to practice his profession." 10 Gonz. L. Rev. at 437. In some actions, only the prospects of attorney fees and potential treble damages provide a complete remedy. RCW 19.86.090. The CPA should be "available as an efficient and effective method of filling the gaps left vacant by the existing common law ..." (footnote omitted), 10 Gonz. L. Rev. at 437, as well as the Code of Professional Responsibility. II Next, we consider whether the application of the CPA to attorneys would be an unconstitutional legislative invasion of the jurisdiction of the Supreme Court in its power to regulate the practice of law. Const, art. 4, § 1 provides: "The judicial power of the state shall be vested in a supreme court ..." The Supreme Court has an exclusive, inherent power to admit, enroll, discipline, and disbar attorneys. Graham v. Washington State Bar Ass'n, 86 Wn.2d 624, 548 P.2d 310 (1976). We have held the exercise of "'this power is necessary for the protection of the court, the proper administration of justice, the dignity and purity of the profession, and for the public good and the protection of clients'." Seattle v. Ratliff, 100 Wn.2d 212, 215, 667 P.2d 630 (1983) (quoting In re Bruen, 102 Wash. 472, 475, 172 P. 1152 (1918)). Furthermore, "'the power to make the necessary rules and regulations governing the bar was intended to be vested exclusively in the supreme court, free from the dangers of encroachment either by the legislative or executive branches.'" Hagan & Van Camp, P.S. v. Kassler Escrow, Inc., 96 Wn.2d 443, 453, 635 P.2d 730 (1981) (quoting Graham v. Washington State Bar Ass'n, 86 Wn.2d 624, 633, 548 P.2d 310 (1976)). Plaintiffs assert application of the CPA to the practice of law violates the separation of powers doctrine. See Hagan & Van Camp, at 452-53 (RCW 19.62, which permitted nonattorneys to select and prepare documents for real estate transactions, unconstitutionally infringed upon the court's inherent power to regulate the practice of law). Plaintiffs maintain defendant's complaints are regulated by the court (¿.e., disciplinary rules) and cannot be shared with the Legislature. The legal profession is claimed to be the most strictly regulated of all professions and plaintiffs state that to allow regulation of lawyers by a "politically motivated" Legislature is not in the public interest. Defendant contends application of the CPA to lawyers does not violate the court's power to regulate the practice of law. He analogizes that criminal laws (i.e., criminal fraud) could not be applied to attorneys if plaintiffs' position was adopted. Moreover, defendant criticizes plaintiffs' failure to show that applying the CPA to lawyers would interfere with the court's powers. Amicus curiae, Washington State Attorney General, relying on In re Bruen, 102 Wash. 472, 172 P. 1152 (1918), argues the separation of powers doctrine does not create an impenetrable barrier through which the Legislature may not venture. Rather, the exclusive power of the court lies in determining who may practice law and who, once admitted, shall be suspended or disbarred from such practice. The corollary, according to amicus, is that the Legislature may constitutionally act with regard to attorneys so long as its enactments do not affect or purport to take away the court's power to admit, suspend, or disbar. In Bruen, an attorney challenged a 1917 act which delegated authority to the board of law examiners to determine his fitness to practice law as an unconstitutional encroachment on judicial powers. The court upheld the constitu tionality of the act, except for the provision for a final order by the board. Final judgments on disbarment were to come from the court. 102 Wash, at 481. In relating the two powers the court stated: The cases are fairly uniform upon the proposition that admitting to practice, suspending, and disbarring are judicial functions. The legislative power, in the interest of uniformity of standard and to remedy and prevent mischiefs in the profession, may regulate and restrict this power, but cannot take it away. It may provide machinery for the administration of the regulation provided by the legislature, as in carrying into effect such regulations some agency is necessary. 102 Wash. at 477. Similarly, in Heslin v. Connecticut Law Clinic of Trantolo & Trantolo, 190 Conn. 510, 461 A.2d 938 (1983), the Connecticut Supreme Court recognized the judicial disciplinary system and consumer protection laws have different functions and there is no reason why they cannot coexist. We should not permit the special relationship of attorneys to the judiciary to blind us to the fundamental importance of the relationship of attorneys to their clients. Although the canons of ethics and the disciplinary rules of the Code of Professional Responsibility purport to govern both the official and the private aspects of the practice of law, the code's emphasis is consistently ethical and regulatory. [CPA], by contrast, is primarily addressed to the pragmatic concerns of the public; it emphasizes prevention of injury to the consumer of legal services and redress to those injured by attorney misconduct. [CPA] in no way relieves attorneys of the ethical duties imposed on them by the code. For the conduct that [CPA] declares illegal, it provides distinctly separate remedies, different both in purpose and in form from the scheme of regulation envisaged by the code. We recognize that [CPA's] distinct form and purpose do not, by themselves, guarantee that the judiciary's disciplinary power will continue to operate in an unhindered fashion. The defendant has not, however, demonstrated the contrary. A priori, there is no reason why the code and [CPA] cannot coexist. (Footnotes and citations omitted.) 190 Conn. at 525-26. Cf. Goldfarb v. Virginia State Bar, 421 U.S. 773, 793, 44 L. Ed. 2d 572, 95 S. Ct. 2004 (1975) ("[i]n holding that certain anticompetitive conduct by lawyers is within the reach of the Sherman Act we intend no diminution of the authority of the State to regulate its professions"). While we should jealously protect our prerogatives, if the legislative power is not limited by the constitution, it should be unrestrained. Moses Lake Sch. Dist. 161 v. Big Bend Comm'ty College, 81 Wn.2d 551, 555, 503 P.2d 86 (1972), appeal dismissed, 412 U.S. 934 (1973). This is in accordance with our presumption in favor of the constitutionality of legislative acts. Crane Towing, Inc. v. Gorton, 89 Wn.2d 161, 169, 570 P.2d 428, 97 A.L.R.3d 482 (1977). Accordingly, we hold the CPA does not trench upon the constitutional powers of the court to regulate the practice of law. Closely connected with the constitutional argument is the ruling of the trial court that defendant's CPA claim must be dismissed because he "has pled and does have other adequate remedies available to him." In support of this view the trial court cited Lightfoot v. MacDonald, 86 Wn.2d 331, 544 P.2d 88 (1976). Lightfoot, however, does not support this position. Rather, it said that the CPA does not "provide an additional remedy for private wrongs which do not affect the public generally." Lightfoot, at 333. Implicit in this statement and in the thrust of Lightfoot is the view that the CPA was to give an additional remedy to those who have suffered a wrong which does impact the public interest. That this is the correct interpretation of Lightfoot is borne out by cases such as Salois v. Mutual of Omaha Ins. Co., 90 Wn.2d 355, 360, 581 P.2d 1349 (1978) and Thomas v. French, 30 Wn. App. 811, 813, 638 P.2d 613 (1981). To conclude, lawyers may be subject to liability under the CPA. We hold entrepreneurial aspects of the practice of law, which are principally counterclaimed by defendant, fall within the sphere of "trade or commerce" under RCW 19.86.010(2) and 19.86.020. As to such claims, we reverse the trial court's dismissal of defendant's CPA counterclaims. Defendant's claims which purely allege negligence or legal malpractice are exempt from the CPA and were properly dismissed under CR 12(b)(6). While we hold the term "conduct of any trade or commerce" does not exclude all conduct of the profession of law, we do not decide in this case whether the CPA applies to every aspect of the practice of law in this state as to the performance of legal services. Whether Demopolis at trial can satisfy the Anhold public interest test or other requirements of the CPA is beyond our scope of review. Anhold v. Daniels, 94 Wn.2d 40, 46, 614 P.2d 184 (1980). Finally, we hold application of the CPA to entrepreneurial aspects of the practice of law does not violate the separation of powers doctrine. Dimmick, J., and Cunningham, J. Pro Tern., concur.

Ellis, J. This is an action to recover damages for personal injuries, suffered by the plaintiff by being struck by the defendant with his automobile. The negligence charged was, that the defendant negligently ran his automobile at a rapid, dangerous, and unlawful rate of speed; that the automobile was without good and proper brakes, steering gear, and horn, and that the defend ant negligently and carelessly, without sounding any horn or giving any other alarm, ran his automobile upon the defendant, inflicting the injuries complained of. The accident occurred in the city of Seattle, upon Westlake avenue near its intersection with Sixth street. In order to a proper understanding of the locality, we reproduce a plat with reference to which the witnesses testified and which is admitted by both sides as approximately correct. The plaintiff testified that, at about two o’clock in the afternoon of September 8, 1911, he was standing on the curb of the sidewalk on the easterly side of Westlake avenue, at a point about twelve feet southerly from the northerly rounded point of the triangular block bounded by Westlake avenue, Stewart street and Sixth street. He stood near a guy post supporting the suspension wire for the trolley cable of the electric street car line which occupies the middle of Westlake avenue. He had some bundles in his arms, and was waiting to take a north-bound car for his home in Ballard. This post bore the sign “Cars stop here,” and marked the usual place of stopping to take on passengers when any were waiting there. He located this post at the point which we have designated with the letter A upon the plat. The distance in a straight line from the curb to the nearest rail of the car track is about twenty-one feet. When his car arrived from the south, it passed the post a short distance before slowing up and stopping at a point about opposite to or a little beyond the rounded apex of the triangle as shown upon the plat. Just as the car was stopping, he looked south on Westlake avenue and saw no automobile or other vehicle. The street was perfectly clear. He stepped into the street and started in a diagonal direction toward the car without looking back, which is the last thing he remembers. In taking his course from the guy post toward the car, his back was necessarily turned to the south. He heard no gong, horn, or sound from the automobile, nor did he receive any other warning of its approach. The conductor of the street car testified .that he was standing in the rear vestibule of his car when it approached a point opposite the post marked “Cars stop here;” that he saw the plaintiff standing on the curb near the post with some bundles in his arms; that he gave the usual signal of two bells to stop thé car; that the car ran a short distance past the post, stopping at a point about as indicated upon the plat; that he saw the plaintiff start diagonally across the intervening space toward the car without turning or looking back; that the witness looked south along Westlake avenue and saw the defendant in his automobile approaching from the south at a very rapid rate; that when he first saw the automobile it was a short distance north of the intersection of Stewart street and Westlake avenue, on the east side of the avenue, at a point which he indicated upon the plat and which we have designated by the letter B; that this point was about 75 or 80 feet from the place where the plaintiff was struck; that the automobile was running twenty-five or thirty miles an hour; that no horn was sounded or other warning given; that the plaintiff’s back was toward the automobile; that as the automobile approached, it swerved slightly toward the curb; that the plaintiff had taken only two or three steps when the automobile struck him on the right side and back, carrying him or throwing him fifteen or twenty feet and knocking him senseless; that the automobile even then retained such speed that it skidded on into Sixth street, sliding and swinging around, finally stopping in Sixth street with the rear toward the street car; that the pavement was wet. This witness located the automobile when it finally came to a stop as we have indicated by the letter C upon the plat. He testified that the defendant apparently threw on the brakes so that the rear wheels of the automobile slid along the pavement, as shown by the marks of the wheels, for a distance of sixty feet or more before the plaintiff was struck. Two other eyewitnesses of the accident, one of whom viewed it from the rear of the street car and the other from the sidewalk, testified to practically the same facts as did the conductor. All agreed that the automobile was running at least twenty-five miles an hour, and was still going very rapidly when it struck the plaintiff. All agreed that the defendant sounded no horn or gave other warning of his approach. This fact was also testified to by a woman who was on the rear of the street car waiting to get off. None of these witnesses testified to seeing the automobile until after it was a little distance north of Stewart street, at or near the point marked B upon the plat. None of the witnesses saw the plaintiff look south before starting for the street car. The evidence on this point rests upon his own testimony, that he looked in that direction just before leaving the curb and saw no automobile. It seems to be admitted that Westlake avenue at the place in question was paved, and has a slight but uniform down grade toward the north, and that the pavement was wet. An experienced chauffeur, called as an expert, testified that he had driven automobiles of various kinds, including the kind here involved; that he had experimented as to the distance within which an automobile could be stopped; that he was acquainted with Westlake avenue at the point here in question; that an automobile running at the rate of twenty-five miles an hour upon a wet pavement, slightly down grade, would run about one hundred feet after the brakes were applied before stopping. The evidence showed ■ that it was about one hundred feet from the point where the automobile was first observed by any witness to the point where it finally came to a stop. The plaintiff also introduced in evidence Ordinance No. 24,597 of the city of Seattle. In section 13 is found the following: “No person shall ride, drive or propel any automobile, autocycle, or other motor vehicle, without having attached thereto a bell, gong, or whistle, in good working order, and sufficient to give warning of the approach of said vehicle or machine, nor shall the driver thereof fail or neglect to sound such device as a warning upon approaching any other vehicle or pedestrian; or upon approaching any place where a person, or persons may be entering or leaving any street car, or other public conveyance, or upon approaching any street intersection, or before passing around a corner . . . .” Section 17, as applied to the district here in question, prescribes a maximum lawful rate of speed of twelve miles an hour on paved streets. Section 30 is as follows: “No person shall carelessly, heedlessly or negligently ride or drive any horse or other animal, or ride, or propel any automobile, or motor vehicle in, through, along, or over any public place so that such animal, or vehicle attached thereto, or any such automobile, or auto vehicle, shall come in collision with any other animal or vehicle, or shall strike against any person.” From an order of nonsuit and a judgment dismissing the action, the plaintiff has appealed. If the evidence introduced in behalf of the appellant was true, and it must be so assumed in passing upon the motion for nonsuit, the respondent was guilty of negligence in at least two of the particulars charged. He was running his automobile at about twice the maximum lawful rate of speed (Ordinance No. 24,579; Rem. & Bal. Code, § 5571). He sounded no horn or other alarm in approaching a pedestrian within twelve feet of an intersecting street, and who, as must have been manifest to any observer, was intending to board the street car at a usual stopping place. In both of these' particulars he was acting in violation of positive law. This was in itself negligence. Ballard v. Collins, 63 Wash. 493, 115 Pac. 1050; Engelker v. Seattle Elec. Co., 50 Wash. 196, 96 Pac. 1037; Traver v. Spokane St. R. Co., 25 Wash. 225, 65 Pac. 284. Even in the absence of the violation of any speed limit as fixed by statute or ordinance, the question of respondent’s negligence would still be one of reasonable care. It would still be for the jury to say whether he was guilty of a lack of such care in driving his automobile at the rate of twenty-five miles an hour upon the wet pavement of a city street, past a stopping street car, and within twenty feet of an intersecting street where pedestrians were likely to be encountered in getting on or off the car. It has been so held where an automobile was running at the time at the rate of only six or seven miles an hour. Brewster v. Barker, 129 App. Div. 724, 113 N. Y. Supp. 1026; Thies v. Thomas, 77 N. Y. Supp. 276; Marsh v. Boyden, 33 R. I. 519, 82 Atl. 393; Huddy, Automobiles, p. 142; Berry, Law of Automobiles, § 164. In any view of the case, the question of respondent’s negligence was, under the evidence, one for the, jury. The trial court held that, even conceding that the respondent was guilty of negligence, the appellant was, as a matter of law, guilty of such contributory negligence as to preclude a recovery. This was error. In common with other courts, we have held that, in passing upon a motion for a nonsuit, the court must consider, not alone the literal statements of the witnesses, but every justifiable inference favorable to the party against whom the motion is directed. Young v. Aloha Lamber Co., 63 Wash. 600, 116 Pac. 4; Ladouceur v. Northern Pac. R. Co., 4 Wash. 38, 29 Pac. 942; Hendrickson v. Simpson Logging Co., 69 Wash. 72, 124 Pac. 395. The appellant testified that, just before stepping from the curb, he looked south along the avenue and saw no automobile. The inference thus raised, that the automobile was not then there, is not overcome by the fact that three other witnesses an instant later saw the automobile at a point on the avenue immediately north of its intersection with Stewart street. On the contrary, the coincidence, that no witness saw the automobile at any point on the avenue south of Stewart street, was a fact from which the jury would have the right to infer that it at that instant swung into the avenue from Stewart street. This inference would be justified by the speed of the automobile, which need not be diminished by the wide curve which it could describe in swinging in on Stewart street from the west, and by the appellant’s statement that he looked before leaving the curb and saw no automobile. This inference harmonizes the testimony of all of the witnesses, and runs counter to no other fact in evidence. Marsh v. Boyden, supra. Whether, after looking once and seeing a clear street, the appellant acted as a reasonably prudent man in proceeding from a point within twelve feet of the street intersection toward the street car which he was intent upon boarding, without again turning and looking south along the avenue, in the absence of any sound of horn or other warning, was plainly a question for the jury. As said by the supreme court of Massachusetts, so holding in a case parallel with this in every essential particular: “There is no imperative rule of law which has been called to our attention generally requiring a pedestrian when lawfully using the public ways to be continuously looking or listening to ascertain if autocars are approaching, under the penalty that upon failing to do so, if he is injured, his negligence must be conclusively presumed.” Hennessey v. Taylor, 189 Mass. 583, 76 N. E. 224, 3 L. R. A. (N. S.) 345. See, also, Baker v. Close, 204 N. Y. 92, 97 N. E. 501, 38 L. R. A. (N. S.) 487; Dugan v. Lyon, 41 Pa. Sup. Ct. 52; Bouma v. Dubois, 169 Mich. 422, 135 N. W. 322; Diamond v. Cowles, 174 Fed. 571; Purtell v. Jordan, 156 Mass. 573, 31 N. E. 652; Lynch v. Fisk Rubber Co., 209 Mass. 16, 95 N. E. 400; Richmond v. Tacoma R. & P. Co., 67 Wash. 444, 122 Pac. 351; Morris v. Seattle, R. & S. R. Co., 66 Wash. 691, 120 Pac. 534. We have so often held that a court will not be justified in taking from the jury the question of contributory negligence, unless the acts done are so palpably negligent as to preclude the possibility of difference of opinion concerning them, that citation of authority to the point seems unnecessary. Even granting that the appellant was negligent in failing to look to the south after leaving the curb, that fact cannot be held, as a matter of law, the proximate or efficient cause of the injury. The respondent had no absolute right of way upon the street. His right was certainly no greater than that of the appellant. Their rights and duties were reciprocal. Whether, notwithstanding any previous negligence of the appellant, the respondent could have seen the appellant and avoided the accident had he been running at a reasonable rate of speed or had he sounded a horn, was a question for the jury. Davids, The Law of Motor Vehicles, § 118; Burvant v. Wolfe, 126 La. 787, 52 South. 1025, 29 L. R. A. (N. S.) 677; Morris v. Seattle, R. & S. R. Co., supra; Mallett v. Seattle, R. & S. R. Co., 66 Wash. 251, 119 Pac. 743. We cannot, without unwarrantably extending this opinion, review the many authorities cited by the respondent.' They are all of them distinguishable from this case upon the facts. The judgment is reversed, and the cause is remanded for further proceeding. Mount, C. J., Morris, Fullerton, and Chadwick, JJ., concur.

Gose, J. This is a bill in equity to foreclose a material-man’s lien. There was a judgment of dismissal, from which the plaintiff has appealed. The facts in brief are as follows: The respondents, the ■owners of certain lots situated in the city of Tacoma, entered into a contract with one Dillon, whereby the latter agreed to construct a dwelling house upon the property.- The appellant furnished sash, windows, and doors to the contractor, to be used, and which were used, in the.house. All the material furnished by the appellant was. furnished between March 2 and June 2, 1909, except two or three panes of glass. These were furnished on the order of the respondent Grafton, on August f8, 1909, to replace defective glass theretofore furnished by the appellant. On October 14, 1909, the appellant filed a claim of lien for the material which he had furnished, and caused it to be duly recorded. The trial court ■denied the hen, because he was of the opinion that the lien should have been filed within ninety days from June 2, 1909, ■and it was not so filed. The court found that the architect in charge of the construction of the dwelling condemned and refused to accept the material furnished by the appellant, notified him thereof, and demanded that it be removed from the dwelling and that other material conforming to the specifications should be substituted. The court further found: “(5) That on the 18th day of August, 1909, in pursuance of a request and order from said A. E. Grafton, and without any knowledge on the part of said A. L. Dillon, and not in performance of the original contract between plaintiff and Dillon, plaintiff herein sent to the said dwelling house a box containing certain lights of glass, which were delivered by the plaintiff for the purpose of replacing defective panes of glass theretofore put into said building; that two or three panes of glass so delivered on August 18th, 1909, were put into the building, being substituted for defective panes, the defects not being apparent or discovered until after all material furnished by said plaintiff had been put into the house; and the balance of the glass so delivered on August 18th, 1909, was returned to plaintiff; that at the time of such delivery on August 18th, 1909, no statement thereof, either original or duplicate, was delivered or mailed either to A. E. Grafton, Anna S. Grafton, or the Minnesota Investment Company, the owners of said property.” The statute, Rem.'& Bal.-Code, § 1129, provides that every person furnishing material to 'be used in the construction of a building has a lien-upon the'same for the material furnished. Section 1134, so far as pertinent to the present inquiry, provides that no lien shall exist or be enforced unless, within ninety days from the date “of- the cessation” of the furnishing of the material, a claim for' Such lien shall be filed for record. We think the -learned trial court-misinterpreted the statute. The delivery of- August 18 was made upon the demand of one of the owners of the property, for the purpose of correcting defects'which he claimed existed. The good faith of the appellant in furnishing these items cannot be questioned. The time for filing the claim of lien had not then expired, and the material was not furnished for the purpose of prolonging the time for filing it, or for the purpose of renewing a right to a Hen which had been lost by delay. As was said in Conlee v. Clarh, 14 Ind. App. 205, 42 N. E. 762, 56 Am. St. 298: “Moreover if the time for filing the lien was extended by the last labor done; this was performed at his [the owner’s] special instance and request, and he must be deemed chargeable with the knowledge of the legal consequences of his own act.” The same rule is concretely stated in McIntyre v. Trautner, 63 Cal. 429, as follows: “Defendant cannot' be heard to say that the additional work, done at his -request to complete the contract, was not a continuation of the previous work, ■ and done • under the same contract.” .. ... The following authorities announce the same view: 27 Cyc. 147, 148; Gordon Hardware Co. v. San Francisco & S. R. R. Co., 86 Gal. 620, 25 Pac.. 125; Minneapolis Trust Co. v. Great Northern R. Co., 74 Minn. 30, 76 N. W. 953; Id., 81 Minn. 28, 83 N. W. 463; Shaw v. Fjellman, 72 Minn. 465, 75 N. W. 705;. Stidger v. McPhee, 15 Colo. App. 252, 62 Pac. 332; General Fire Extinguisher Co. v. Schwartz Bros. Com. Co., 165 Mo. 171, 65 S. W. 318; Farnham v. Richardson, 91 Me. 559, 40 Atl. 553; Watts-Campbell Co. v. Yuengling, 125 N. Y. 1, 25 N. E. 1060; New England Engineering Co. v. Oakwood St. R. Co., 75 Fed. 162; McLean v. Wiley, 176 Mass. 233, 57 N. E. 347; Miller v. Wilkinson, 167 Mass. 136, 44 N. E. 1083; Fitzgerald v. Walsh, 107 Wis. 92, 82 N. W. 717, 81 Am. St. 824. We think the facts found bring the case squarely within the statute. The language of finding 5, that the delivery of August 18 was “not in performance of the original contract,” is a conclusion of law which does not flow from the facts stated. The respondents rely upon the case of Ellsworth v. Layton, 37 Wash. 340, 79 Pac. 947. In that case the work was completed and accepted during the first days of October. On January 6, upon the demand of the owner, the contractor put metallic flashings over six windows that had been inadvertently omitted, and on February 13 certain drain tile was relaid. The claim of lien was filed on April 3. It was held that the time for filing the lien commenced to run upon the completion and acceptance of the building. As we have seen, the court found in the case at bar that the material furnished by the appellant and put into the building by the contractor was not accepted. The Ellsworth case is therefore distinguishable. Nor does the fact that the appellant failed to furnish the owner a duplicate statement of the items furnished on August 18 defeat the lien. The statute, Rem. & Bal. Code, § 1133, provides that every person furnishing material to be used in the construction of a building “shall, at the time such material or supplies are delivered to any person or contractor,” deliver or mail to the owner of the property upon which the material is to be used, a duplicate statement of all such materials “delivered to any contractor or person.” In this case the material was delivered to the owner upon his demand. The words “person or contractor” have no reference to a delivery to the owner. . If the legislature had intended to provide for cases where the delivery was to the owner, it would have done so in clear language, and would not have left it to the courts to extend the statute to such cases by construction. In Finlay v. Tagholm, 60 Wash. 539, 111 Pac. 782, and Id., 62 Wash. 341, 113 Pac. 1083, the material was furnished to the contractor and not to the owner. The material, aside from that furnished on August 18, was furnished to the contractor and accepted by him. The respondents must, therefore, look to the contractor for any damages resulting from material put into the building which ■does not conform to the contract. The judgment is reversed, with directions to enter a decree establishing the respondents’ lien for the items set forth in finding 4, with legal interest, together with a reasonable attorney’s fee and costs, and to decree a foreclosure of the lien. Fullerton, Parker, and Mount, JJ., concur.

Parker, J. The plaintiffs are residents of the state of Illinois, engaged in the brokerage and banking business, while the defendants are farmers residing in Spokane county, this state. On the 7th day of May, 1906, the defendants signed a paper writing in words and figures as follows: Stockholders’ Purchasing Contract No. 910 Spokane, "Wash., May 7th, 1906. After a good and satisfactory examination of the Belgian Stallion named Jules D’Or 1635 No. (25894) owned by The Burgess Importing Co., of Wenona, Illinois, and recognizing his value as a means of improving our horse stock, we, the undersigned subscribers, hereby purchase said Stallion of The Burgess Importing Co. accordingly, and we hereby authorize the delivery of said horse to any one of the subscribers hereto. Capital Stock, $3200.00. Shares $400.00 Each. ........................[Perforated Line]......................... No. 910 $3200.00. Spokane, Wash., May 7th, 1906. For Value Received, we or either of us promise to pay to the order of Rob’t. Burgess and Son the sum of Thirty Two Hundred Dollars in payments as follows: One Thousand and Sixty Six Dollars, Sept. 1st, 1907. One Thousand and Sixty Seven Dollars, Sept. 1st, 1908. One Thousand and Sixty Seven Dollars, Sept. 1st, 1909. with interest at the rate of 8 per cent, payable annually. J. W. Hatch Samuel Greene J. Humphries John W. Haynes Henry Binger Charles Terry (Guernsey Dairy Co.) (Per Karl Scharpenberg). B 156 11702. On the back of the part which is above the perforated line was indorsed the following: Subscriber’s Receipt This is to Certify that I, a subscriber, on the note for the purchase price of the Belgian Stallion No. 1635 (25894) named Jules D’Or, do hereby for myself and associates, acknowledge the delivery of said horse to us by The Burgess Importing Co., in good health and condition, and according to contract, and as represented to us by the salesman of said firm. Dated this 15th day of May, 1906. S. Greene. On the date of the making of the note there was credited $400 on the back thereof. Thereafter the note was detached from the upper portion and assigned by the payees to the plaintiffs. In April, 1908, plaintiffs commenced this action to recover the balance of the first installment of the principal and interest as appeared to be due by the terms of the note, alleging in their complaint the usual facts as to the making of the note, nonpayment of the first installment and interest, and further alleging that, before the note became due in the state of Illinois, for value, the said Robert Burgess & Son indorsed and delivered said note to said plaintiffs, and said plaintiffs are now the holders in due course and the owners of said note. This last allegation is denied by the answer, which also contains other denials, though the affirmative allegations of the answer constitute the principal defense, and are in substance as follows: That on the 1st day of May, 1906, E. V. Larson and M. C. Gray came to the homes of the defendants and represented that the Burgess-Gray Horse Importing Company was composed of Robert Burgess and son and M. C. Gray of Pullman, Washington, having in their possession a certain horse which they were desirous of selling under certain conditions, and claimed that the Burgess-Gray Importing Company was the owner of said horse and desired to organize an association among the farmers in the locality where these defendants resided, for the purpose of selling said horse; and further informed these defendants that the purchase price of said horse should be divided into shares in the nature of a stock transaction, and that all of said stock should be subscribed by different parties before the sale could be made; that the defendants tentatively became members of the association, but a sufficient amount of stock for the purchase of said horse was not subscribed for by the defendants, and the said Larson and Gray undertook to reduce the price, and credited thereon the sum of $400 in order that a contract of purchase might be made; that thereafter the Burgess-Gray Importing Company, through their agent, the said Gray, undertook to sell to the plaintiffs said horse as a stock horse for the use of breeding purposes only, for the sum of $3,200, less the $400 which was credited on the note given as the purchase price therefor; that the Burgess-Gray Horse Importing Company knew at the time that said horse was diseased and was of no value whatever for said purpose, and that the disease and the maladies from which said horse was suffering and was afflicted were of a latent nature and could not be told by casual observation such as was made by the defendants; that at said times and after-wards said Gray, as agent for said company, represented and stated to the defendants, and each of them, that, if for any reason the said horse proved unsatisfactory or was afflicted with any disease or malady whatsoever, he might be returned to Pullman, Washington, and another horse of like appearance, sound and well, would be furnished the defendants without further cost; that the defendants, believing said fraudulent representations, received said horse and signed the contract and note above set forth; that, for convenience and at the request of the said Burgess Horse Importing Company and the said Gray, the contract was made payable to Robert Burgess & Son, who were a part of, and represented to be a part of, said Burgess Horse Importing Company; that this was the only contract ever given by the defendants, or either of them, by which they promised to pay to Robert Burgess & Son any sum whatsoever; and if the plaintiffs have any note, as represented in their pleading, it was cut from the said contract without the consent of the defendants, or either of them; that subsequently said horse proved to be unsatisfactory to the defendants, and of no value whatsoever for the purpose for which it was sold; that thereafter said Gray came to the homes of the defendants at their request, and observed the condition of the horse, acknowledged that he was so diseased, and of no account whatsoever, which was true, and stated that they might return the horse to Pullman and receive in exchange therefor a horse of similar appearance, but sound and well; that thereafter, on June 13, 1906, the defendants returned said horse to Gray at Pullman, and demanded of Gray a similar horse of like breed and appearance, having as great commercial value as the former horse would have had had he been sound and well; that said demand was not complied with, nor was any horse offered to be delivered to them, save and except a two-year old colt of a different breed and of a value not to exceed $600, which said defendants refused to accept, and thereupon demanded a return of their contract and note which had been signed, which was refused; that no other consideration whatsoever was ever given for said contract and note. The defendants further alleged, on information and belief, that the plaintiffs are endeavoring to assist said Burgess-Gray Horse Importing Company in defrauding these defendants, and are mere figureheads and have no interest in this litigation. The reply of plaintiffs denies the affirmative allegations of the answer. It will be noticed that the names of the owner or owners of the horse undergo several changes in the answer, but the reply of the plaintiffs admits that the horse was sold by Robert Burgess & Son to the defendants. It is also evident from the proofs that these various names represent the same owners of the horse. The cause proceeded to trial before the court and a jury upon these issues, at the conclusion of which, upon motion of counsel for plaintiffs, the court, over the objection of defendants’ counsel, peremptorily instructed the jury as follows: “Gentlemen of the Jury, the plaintiffs having proved the making of the note, the purchase of it in good faith in the ordinary course of business, and without any notice whatever of any infirmities or defects in it, and the defendants having for that reason failed to show themselves entitled to introduce the matters that they claim as a defense to the note to the consideration of the jury, the court instructs you that all there is for you to do would be to retire to your room, select a foreman, figure out the amount that is due upon the note, and return a verdict for the plaintiffs for that amount.” Exception was noted by the defendants, verdict and judgment were rendered and entered accordingly, after which motion for new trial was made by defendants and by the court overruled, exception being noted, and thereupon the cause was brought here by this appeal. All of the evidence taken upon the trial is brought here by statement of facts, upon which we are asked to review the errors assigned. The principal contentions of appellants arise upon the alleged error of the learned trial court in taking the case from the jury, and thereby in effect deciding as a matter of law that the defendants had conclusively proven the purchase of the note in good faith before maturity without notice of infirmities. This presents two questions : First: Was the evidence of fraud in the procuring of the note sufficient to entitle defendants to have that question submitted to the jury, had the suit been between the original parties only? Second: Was the evidence touching the good faith of the plaintiffs in the purchase of the note and as to its purchase in due course before maturity such as to entitle defendants to have that question submitted to the jury? If these questions be answered in the affirmative, then the trial court was in error in disposing of the cause as a matter of law. So far as the first question is concerned, we do not understand from the remarks of the learned trial judge that he expressed any opinion as to whether or not the evidence was sufficient to carry the case to the jury upon the defense of fraud, had the suit been between the original parties. This question, however, we deem necessary to determine before passing upon the rights of the respondents, so far as such rights are dependent upon their being innocent holders; for, if the defense of fraud did not have sufficient evidence in its support for submission to the jury, there would be no infirmity in the note for the respondents to take notice of, and the manner and time of their acquiring the note would be out of the case. To this end we have carefully read all of the evidence produced in support of the allegations of fraud pleaded as a defense in appellants’ answer, and are of the opinion that there was abundant evidence, if believed by the jury, to support such allegations, such as would render it clearly erroneous not to submit that question to the jury if the original parties alone were in the cause. This brings us to the second question: Was the court in error in its peremptory instruction to the jury, and thus deciding as a matter of law favorably to respondents? We are constrained to think error was so committed. It is to-be remembered that the allegation of the respondents in their complaint, in substance that they purchased the note before maturity for value in due course, and that they were the owners, is denied by the answer, and thus becomes one of the principal issues of fact in the case, upon which, as we will later see, the respondents had the burden of proof. Without attempting to review in detail the evidence introduced upon this branch of the case, we will call attention to some things appearing therein which we regard as of controlling influence. There was no evidence as to the manner, consideration, or time of purchase of the note by the respondents, save that given by themselves. Frank N. Ireland testified as to the amount paid for the note, and that it was purchased of Robert Burgess & Son, August 1, 1907, without any notice of there being any defense thereto. It will be noticed this was after interest was some three months in default, but before maturity of the first installment. Charles Ireland testified to substantially the same ■ efféct, but he admitted upon cross-examination that the knowledge he had in this respect was gained from their records, and it was from them he was testifying. No record was produced, so we have no competent evidence of the purchase, or time of purchase, of this note save that of Frank N. Ireland, who, of course, is a witness directly interested in the result- of the cause. His testimony in this regard was not contradicted by any direct evidence. There was, however, the circumstance of the interest being in default some three months, as well as other minor circumstances which the jury would have been warranted in. taking into consideration in weighing the testimony of Frank N. Ireland, even though not directly contradicted, had the cause been submitted to them. In other words, the jury would not have been required to take the testimony of Frank N. Ireland in this regard as conclusive proof, and there was no other upon that question. Section 59 of our negotiable instrument law, page 351, Laws of 1899, among other things provides: “When it is shown that the title of any person who has negotiated the instrument was defective, the burden is on the holder to prove that he or some person under whom he claims acquired the title as holder in due course.” This is but a statement of the general rule fixing the burden of proof, and which has special force when applied to a case where fraud is involved in the procuring of the note. Keene v. Behan, 40 Wash. 505, 82 Pac. 884; City National Bank v. Jordan (Iowa), 117 N. W. 758; Canajoharie Nat. Bank v. Diefendorf, 123 N. Y. 191, 25 N. E. 402. See, also, note to same case in 10 L. R. A. 676. On page 200 of the official report of the case last cited, the court says: “The claim that the plaintiff’s cashier was a disinterested witness, whose testimony must be regarded as controlling if not contradicted, cannot be sustained. Aside from the alleged improbability of his statements, he was the financial agent of the plaintiff and the owner of one-fifth of its capital stock, and aside from his direct interest, responsible to his principal for the care, fidelity and prudence with which he discharged his official duties. His interest in the transaction was co-extensive with that of the plaintiff, and brings him directly within the cases which hold that the credibility of such a witness is a question for the jury to determine.” The supreme court of Iowa, expressing similar views in the case of McNight v. Parsons, 136 Iowa 390, 113 N. W. 858, uses this language: “The testimony of the cashier of the bank that he or the bank purchased the note for value before maturity, even though he be not disputed by any other witness to the transaction, is not necessarily sufficient to enable the court to say as a matter of law that he received it in good faith. Such evidence does not negative notice or knowledge on part of other officers of the bank. Moreover, the bank being an interested party, the credibility of the testimony of the cashier was a matter for the jury to pass upon in the light of all the facts and circumstances surrounding the matter under inquiry. In Joy v. Diefendorf, 130 N. Y. 6, 28 N. E. 602, 27 Am. St. Rep. 484, the plaintiff sought by his own evidence to prove the circumstances attesting good faith of his possession of the note; and in Bank v. Diefendorf, 123 N. Y. 191, 25 N. E. 402, 10 L. R. A. 676, the bank gave like evidence by its cashier, and it was held in each case that even though undisputed the credibility of such evidence and its sufficiency to satisfy the burden of proof resting upon the plaintiff were matters for the jury, and not a question of law to be disposed of by the court. See, also, Elwood v. Telegraph Co., 45 N. Y. 549, 6 Am. Rep. 140. It follows, therefore, that, so far as plaintiff’s case rested on the indorsement of the note from Bigler & Sons to the bank, the motion to direct a verdict was improperly sustained. . . . Where the taint of fraud once attaches to a written contract, negotiable or otherwise, the law is careful to require every person who seeks to profit by it to show that he comes into court with clean hands. Speaking to this point, the supreme court of Indiana says: ‘It would be a departure from principle to hold that the maker must prove that the holder had notice of the fraud. Whether he had notice or not is a matter peculiarly within his own knowledge. It needs no more than a bare statement of the proposition that the plaintiff’s possession or nonpossession of notice is a matter peculiarly within his own knowledge to establish it to the satisfaction of a candid mind; and if this proposition be established, then it must follow that proof should come from him, for few rules of law are better settled than that a party whose cause of action or defense rests upon facts peculiarly within his own knowledge must prove those facts.’ Giberson v. Jolley, 120 Ind. 301, 22 N. E. 306. While it is not to be presumed that a witness will testify falsely, yet it may be presumed that the testimony of a party will, more or less be colored by his interests or bias, and, generally speaking, where such testimony is offered to overcome an unfavorable presumption of law or evidence, or to satisfy the burden of proof which the law casts upon him, the question as to his credibility and of the weight and effect of his testimony is for the jury.” We are of the opinion that the appellants were entitled to have the question of good faith of the respondents in the purchase of the note submitted to the jury, together with the question of whether or not it was originally obtained by fraud, and that neither of these questions, in the light of this record, could be determined by the court as a matter of law. Learned counsel for appellants contend that the default in the payment of interests was of itself notice of dishonor. We do not agree with this contention. Spencer v. Alki Point Transp. Co., 53 Wash. 77, 101 Pac. 509. Such facts appearing by the instrument, might or might not be sufficient for such showing of dishonor. The weight to be given to such facts might be largely influenced by the length of time such interest had remained unpaid after its maturity. While we hold mere nonpayment of interest after maturity thereof does not of itself show the paper as being dishonored, it nevertheless is a circumstance of some weight to be considered by the jury in determining the good faith of the purchaser, as we have above indicated. Since our view of this cause will require a new trial, it becomes necessary to briefly notice some of .the errors assigned by appellants’ counsel upon the court’s ruling in the rejection of certain evidence offered by them. Among other things alleged by way of affirmative defense, was that the plaintiffs are endeavoring to assist in defrauding defendants, and are mere figureheads, and have no interest in this litigation, except that they hope to cheat, wrong, and defraud the defendants. Among other things, appellants- offered to show, in support of this allegation, which the court refused to allow them to do, that $200 had been deposited in the office of the clerk of the court under the name of Ireland & Son, as security for costs, they being nonresidents, and that they did not know anything about such deposit or where it came from. This was but a slight circumstance, it is true, but nevertheless we think that appellants had the right to show it, in view of their allegations. When Larson and Gray visited the defendants and entered upon negotiation for the sale of the horse, they brought with them and distributed among defendants certain cards in the nature of advertising or business cards, on which was printed the words: “Burgess & Gray Horse Importing Co.,” in large type, and underneath, the words: “Robert Burgess & Son, Wenona, Illinois,” and “M. C. Gray, Pullman, Washington,” together with other printed matter setting forth the nature of their business, with statements as to the value and worth of their horses generally. One of these cards was offered by appellants and admitted, in evidence, in connection with testimony of their distribution, and afterwards by the court stricken out upon motion of respondents’ attorneys, appellants’ counsel objecting thereto. This we regard as error on the part of the court. It seems to us this card was admissible, together with the other evidence, as part of the representations made by Gray during his negotiations with defendants, considering the evidence touching the relationship of Gray with Bobert Burgess & Son. We have referred to the part of the writing which was detached from the note before assignment. This slip was offered in evidence by appellants and admitted, and afterwards by the court stricken out upon motion of respondents’ attorneys, which is claimed by appellants as error. It seems to us that appellants were entitled to have this slip in evidence, since it constitutes a part of the original transaction and shows the consideration for which the note was given. We conclude that the judgment of the lower court must be reversed, and appellants awarded a new trial. For that purpose the cause is remanded to the trial court with instructions to proceed in accordance with this opinion. Rudkin, C. J., Dunbar, Mount, and Crow, JJ., concur.

Brachtenbach, J. — The issue is whether a plaintiff in a case arising from a motor vehicle accident may properly serve a summons and complaint according to the procedure in RCW 46.64.040, the nonresident motorist statute, where the plaintiff has with due diligence attempted to find and serve defendant and where plaintiff has a good faith basis to believe the defendant has departed the state. We answer yes, and conclude that the plaintiff in this case has made such a showing. We reverse the decision of the Court of Appeals. On September 1, 1982, plaintiff Debra C. Martin and defendant Marvin L. Meier were involved in an automobile accident in Whatcom County. The accident report listed a Seattle address for defendant and gave his occupation as a student at Western Washington University. About 2 months after the accident plaintiff retained counsel; thereafter plaintiff's counsel and adjusters from defendant's insurance company corresponded in an attempt to settle plaintiff's claim for injuries sustained in the accident. The correspondence extended beyond running of the 3-year statute of limitations, RCW 4.16.080. On August 12, 1985, plaintiff filed this action in King County based upon defendant's address given in the accident report. Shortly before filing, plaintiff attempted to personally serve defendant at the Seattle address. Unknown to plaintiff, that address was, in fact, defendant's parents' address. A return of service of not found, dated August 10, 1985, stated that on August 9, 1985, after diligent search and inquiry, the process server was unable to find the defendant in King County. Thereafter, plaintiff served the summons and complaint on the Secretary of State pursuant to RCW 46.64.040, which provides in relevant part: [E]ach resident of this state who, while operating a motor vehicle on the public highways of this state, is involved in any accident, collision or liability and thereafter within three years departs from this state appoints the secretary of state of the state of Washington as his lawful attorney for service of summons . . . Service of such summons or process shall be made by leaving two copies thereof with a fee of twenty-five dollars with the secretary of state of the state of Washington, or at his office, and such service shall be sufficient and valid personal service upon said resident. . .: Provided, That notice of such service and a copy of the summons or process is forthwith sent by registered mail with return receipt requested, by plaintiff to the defendant at the last known address of the said defendant, and the plaintiff's affidavit of compliance herewith are appended to the process, together with the affidavit of the plaintiff's attorney that he has with due diligence attempted to serve personal process upon the defendant at all addresses known to him of defendant and further listing in his affidavit the addresses at which he attempted to have process served. However, if process is forwarded by registered mail and defendant's endorsed receipt is received and entered as a part of the return of process then the foregoing affidavit of plaintiff's attorney need only show that the defendant received personal delivery by mail: Provided further, That personal service outside of the state . . . shall relieve the plaintiff from mailing a copy of the summons or process by registered mail as hereinbefore provided. The summons and complaint sent by plaintiff by registered mail to the Seattle address, return receipt requested, were returned undelivered, marked "moved, not forward-able" and "forward expired." Plaintiff's attorney filed an affidavit of compliance in which he described the attempt to send the summons and complaint by registered mail. The attorney also filed an affidavit of due diligence in which he stated that he made due and diligent inquiry among former neighbors in King County, and that the process server informed him that defendant's neighbors said that defendant and his wife moved to California approximately 2Vz to 3 years before. The attorney stated he did not know the whereabouts of defendant and could not learn his whereabouts with due diligence. According to a separate affidavit filed by plaintiff's attorney, at the time the process server attempted to serve defendant the process server checked with the police department in an attempt to locate defendant, questioned neighbors as stated in the affidavit of due diligence, and checked with the King County directory for the name and listing of defendant and found none. An investigator for plaintiff's attorney called the registrar's office at Western Washington University and was informed that defendant had been a student in the spring of 1985, but was not then a student. On plaintiff's motion, venue was changed to Whatcom County. On April 24, 1986, defendant filed a notice of special appearance to contest jurisdiction, claiming that service of process was invalid. Defendant later moved to dismiss the complaint for failure by plaintiff to properly commence the action within 3 years of the accident. In support of this motion, defendant filed an affidavit in which he stated that he had resided in Washington at all times since the accident. He listed seven residences for the period of time from September 1, 1982, to September 1, 1985, and one additional residence during the 90 days following filing of the action during which service could be made pursuant to RCW 4.16.170 and former RCW 4.28.010. Defendant listed the dates he had resided at each residence; however, a total of 4V2 weeks of that time is unaccounted for in the affidavit. Defendant also stated he was not and had never been married. The trial court granted the motion to dismiss. The Court of Appeals affirmed, holding that RCW 46.64.040 must be strictly construed, and that because defendant was within the state at all times during the limitations period, service under the statute was invalid. The court also rejected plaintiff's argument that, based on the ongoing settlement communications between plaintiff's attorney and the insurance adjusters, defendant was estopped to assert a statute of limitations defense. Under RCW 46.64.040, service of the summons and complaint upon the Secretary of State constitutes valid personal service over defendant. The theory underlying this principle is that acceptance of the rights and privileges conferred by law in the use of the state's public highways, evidenced by operating a vehicle on the highways, is deemed equivalent to appointment of the Secretary of State by a nonresident, or a resident who departs the state, as his or her agent upon whom service of process may be made in a suit arising from a motor vehicle accident. RCW 46.64.040. Statutes providing for such service of process upon a statutory agent in suits arising from vehicle accidents have been upheld by the United States Supreme Court. Hess v. Pawloski, 274 U.S. 352, 71 L. Ed. 1091, 47 S. Ct. 632 (1927). RCW 46.64.040's provision for service on the Secretary of State is "'a valid exercise of the police power based upon the right of the State to regulate the use of its highways for their protection, and the protection of persons and property within the State.'" Tellier v. Edwards, 56 Wn.2d 652, 654, 354 P.2d 925 (1960) (quoting Ogdon v. Gianakos, 415 Ill. 591, 114 N.E.2d 686 (1953)). While the statute originally applied only to nonresident motorists, Laws of 1937, ch. 189, § 129, by the Laws of 1957, ch. 75, § 1, p. 310, provision was made for service on the Secretary of State in cases where a resident motorist defendant departed the state. The 1957 version of the statute was upheld in Tellier. In addition to service on the Secretary of State, notice to the defendant is essential for due process. Smith v. Forty Million, Inc., 64 Wn.2d 912, 395 P.2d 201 (1964). Prior to 1971, the statutory requirements provided two tracks by which notice to defendant was ensured: the defendant's return receipt, showing actual notice, or endorsement by postal authorities showing delivery was refused; or personal service upon the defendant outside the state. Laws of 1961, ch. 12, § 46.64.040. In 1971 the statute was amended, and the first proviso changed to substantially its present form. Laws of 1971,1st Ex. Sess., ch. 69, § 1. The statute now has three tracks for notice to defendant: defendant's endorsed return receipt; personal service out of state; or plaintiff's attorney's sworn statement that he or she has with due diligence attempted to serve the defendant at all known addresses, and has sent a copy of the summons and complaint to the last known address of defendant with notice that service has been made on the Secretary of State. The last method contemplates that plaintiff's attorney may not in fact know where defendant is residing, and that defendant may not receive actual notice of the suit against him. We have not addressed the statute since it was amended and therefore briefly discuss the statute's sufficiency in terms of due process notice requirements. The United States Supreme Court held that while the act of a nonresident in using the highways of another state may properly be declared to be an agreement to accept service of process on a state officer such as the Secretary of State in a suit arising out of an automobile accident while the nonresident is using the highway, due process requires either the state officer or the plaintiff to mail notice to the defendant or advise him, by some written communication, in a way so as to make it reasonably probable that the defendant will receive actual notice. Wuchter v. Pizzutti, 276 U.S. 13, 19, 72 L. Ed. 446, 48 S. Ct. 259, 57 A.L.R. 1230 (1928). The Court held that the statutory provisions themselves must be such that there is a reasonable probability that if the statutory procedures are complied with, the defendant will receive actual notice. Wuchter, at 24. As Wuchter early indicated, actual notice to the defendant is not required by due process; indeed, in that case actual notice to the defendant was given, but, absent statutory authority for such notice, was not sufficient. Instead, due process requires "notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections." Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314, 94 L. Ed. 865, 70 S. Ct. 652 (1950). RCW 46.64.040's procedure for mailed notice to defendant's last known address after due diligence in attempting to personally serve defendant satisfies due process requirements. This statutory procedure is such that there is a reasonable probability that if plaintiff complies with the procedure, defendant will receive actual notice. Plaintiff necessarily has a last known address to which to send such notice, and has with due diligence attempted to serve defendant at all known addresses, but cannot locate and serve defendant. Key to the reasonableness of the notice is the requirement that plaintiff exercise such due diligence. The notice must be sent by registered mail. We conclude that mailed notice to defendant's last known address is notice reasonably calculated, under all the circumstances, to apprise defendant of the suit and give defendant an opportunity to present objections, as required by Mullane. Defendant argues that the statute must be strictly construed and according to strict construction he must have actually departed the state in order for the statute to apply. Plaintiff, on the other hand, suggests that substantial compliance with the statute is sufficient. This court has held substantial compliance with Washington's "long-arm" statute, RCW 4.28.185, sufficient where noncompliance was due to failure to timely file the affidavit of nonresidency required by RCW 4.28.185(4), provided defendant was not prejudiced by the late filing. Golden Gate Hop Ranch, Inc. v. Velsicol Chem. Corp., 66 Wn.2d 469, 403 P.2d 351 (1965), cert. denied, 382 U.S. 1025 (1966). The court has also applied a substantial compliance analysis to RCW 4.28-.080(10), providing for personal service upon a qualified agent of a foreign corporation, reasoning that the statute was more analogous to personal service statutes than to constructive service statutes. Reiner v. Pittsburg Des Moines Corp., 101 Wn.2d 475, 680 P.2d 55 (1984). However, while substantial compliance with personal service statutes or their like may suffice in some cases, this court has expressly required strict compliance with the statute at issue here. As a general rule, statutes providing for constructive or substituted service must be strictly construed as in derogation of the common law. Muncie v. Westcraft Corp., 58 Wn.2d 36, 38, 360 P.2d 744 (1961). When RCW 46.64.040 applies, therefore, its procedures must be strictly adhered to, otherwise jurisdiction is not obtained under the statute. E.g., Muncie v. Westcraft Corp., supra; Reynolds v. Richardson, 53 Wn.2d 82, 330 P.2d 1014 (1958). In deciding the next question here, whether the statute applies, we heed the rule that in construing statutes our objective is to ascertain legislative intent as expressed in the statute. State v. Standifer, 110 Wn.2d 90, 92, 750 P.2d 258 (1988). When the Legislature amended the statute in 1971, it evidenced intent that the statute apply in some cases where plaintiff's attorney does not in fact know where the defendant resides. That is, prior to the 1971 amendment defendant's endorsed return or postal endorsement of refusal to accept delivery of the summons and complaint, or personal service outside the state were required by the statute. In either case plaintiff's attorney necessarily knew where defendant resided, and knew that that residence was out of the state. The statute now allows service on the Secretary of State after attempts made with due diligence to serve defendant, and allows notice of service to be sent to the defendant's last known address return receipt requested. The statute does not, however, mandate that defendant's endorsed receipt be received. By the change in the statute, we conclude that the nonresident motorist statute applies not only where plaintiff can conclusively establish that the defendant is a nonresident or resident who has departed the state, but also where there is a reasonable basis to conclude that this is the case. The 1971 amendment providing for service on the Secretary of State in some cases where plaintiff may not know where defendant is located is consonant with the State's interest in regulating the use of the highways for the protection of persons and property within the state. This interest is not dependent on defendant's actual location. As we have discussed, the statutory procedure satisfies due process requirements. We construe the statute as providing for service on the Secretary of State where plaintiff has a good faith belief that defendant has departed the state and has with due diligence attempted to find and serve defendant. Defendant also suggests that plaintiff should not be permitted to circumvent personal service statutes by waiting until nearly the end of the limitations period before making an effort to find defendant, and then be allowed to proceed under the nonresident motorist statute when efforts to find defendant fail. We disagree with this statement of the issue. We stress that we are here considering the statute satisfied only where plaintiff has a good faith belief, reasonable under the circumstances, that defendant has departed the state. The statute cannot simply be used as a substitute for other service of process procedures. Moreover, we will not impose any strictures on the period of time during the limitations period in which plaintiff makes diligent search for defendant. First, the statute itself imposes no such condition. Second, plaintiff has the full period of the statute of limitations to decide whether to file suit at all. It would be absurd to hold that plaintiff must, at whatever cost and inconvenience, locate defendant sometime during the limitations period in case plaintiff decides to sue. In this case, for example, the parties were engaged in ongoing discussion concerning the possibility of settlement of a claim against the insurance company. Plaintiff may well have decided there was no reason to sue unless those negotiations did not come to fruition before the end of the limitations period. Third, defendant's argument suggests that plaintiff must search for defendant at the best time during the limitations period for finding defendant, that is, the argument is close to saying that plaintiff must look for defendant when defendant could be found either in state or out of state. Of course, plaintiff may not merely make a poor attempt to locate defendant. The statute requires that before service on the Secretary of State may be made, plaintiff's attorney must with due diligence attempt to serve defendant. However close to the end of the limitations period plaintiff's attorney begins the search, that search must be a diligent one. Because we have not addressed the statute since it was amended in 1971 when the term "due diligence" was added, we have not construed the term. We have addressed a similar question in the context of RCW 4.28.100, which permits service by publication in certain enumerated situations. In that context, in order to furnish the basis for making an affidavit for publication, this court has held that a reasonable search is necessary. Chase v. Carney, 199 Wash. 99, 103, 90 P.2d 286 (1939); Schmelling v. Hoffman, 111 Wash. 408, 191 P. 618 (1920). Not all conceivable means need be used, but an honest and reasonable effort should be made to find defendant prior to service by publication. Schmelling, at 414. Also in the context of service by publication, the Court of Appeals has followed these precepts, and has held that where plaintiff possessed information regarding defendants' whereabouts which was found in a vehicle accident report, but failed to follow up on that information, plaintiff did not make the honest and reasonable effort necessary to allow for service by publication. Painter v. Olney, 37 Wn. App. 424, 680 P.2d 1066 (plaintiff did not rely on the nonresident motorist statute), review denied, 102 Wn.2d 1002 (1984). Accord, Parkash v. Perry, 40 Wn. App. 849, 700 P.2d 1201 (1985) (none of the affidavits in support of publication indicated the accident report, which contained information which might lead to defendant's whereabouts, was checked by the process server or the plaintiff; also, information appended to the return of service was not investigated; court held plaintiff failed to exercise diligence in effort to find defendant). We hold that "due diligence" under the statute requires that plaintiff make honest and reasonable efforts to locate the defendant. Not all conceivable means need be employed, but, at the least, the accident report, if made, must be examined and the information therein investigated with reasonable effort. In addition, if plaintiff has information available pertaining to defendant's whereabouts other than that contained in the accident report, plaintiff must make reasonable efforts to investigate based on that information as well. Turning to the case at hand, the first inquiry is whether plaintiff had a basis for a good faith belief, which was reasonable under the circumstances, that defendant had departed the state. When the process server attempted to serve defendant, neighbors explained that Mr. and Mrs. Meier had moved to California. Plaintiff's attorney averred the neighbors told him the same thing. Plaintiff had no reason to know whether defendant was married at the time the Meiers moved, and would not have been alerted that because there was a Mrs. Meier who moved, this was not the Mr. Meier plaintiff was seeking. The summons and complaint sent to the Seattle address were returned marked "moved, not forwardable" and "forward expired." Plaintiff knew defendant had been a student at Western Washington University, and could reasonably have believed defendant had left the state, as students frequently do during vacations, terms they take off from studies, or upon completion of their studies. When plaintiff's investigator called the university, she was told that defendant had heen a student in the spring but was not then a student. Plaintiff had a reasonable basis for a good faith belief that defendant had departed the state. Plaintiff also exercised due diligence in attempting to locate and serve defendant. Plaintiff attempted to serve at the address listed on the accident report, and then inquired of neighbors as to whether they knew where defendant was. Plaintiff also inquired of the university whether defendant was a student. Thus, plaintiff followed the leads in the accident report. Plaintiff also checked the King County directory and inquired of the police about defendant. Nothing in the record suggests that plaintiff had other information available which should have been investigated with reasonable effort. Moreover, nothing in this record indicates that defendant was prejudiced. Plaintiff did not default when she could have done so. We conclude that RCW 46.64.040 applies here, and that because plaintiff had a good faith belief that defendant had departed the state, and had exercised due diligence in attempting to locate defendant, service under the statute was valid. Because we find valid service, we do not reach plaintiff's argument that defendant is estopped to assert a statute of limitations defense. Reversed and remanded. Pearson, C.J., and Utter, Andersen, and Durham, JJ., concur.

Chadwick, J. On the 25th day of April, 1912, plaintiffs and defendant entered into a written contract for the sale of the merchantable fir timber on certain lands belonging to the plaintiffs, in consideration of the payment of two dollars per thousand feet. The material parts of the contract follow: “It is agreed that the amount of timber upon the said land is 10,825,000 feet; said timber shall be paid for by the party of the second part as the same shall be cut and logged, the mill scale shall be taken for the purpose of determining approximately the amount of timber logged each month, but the amount of timber to be taken and paid for is agreed to be 10,825,000 feet as aforesaid. All timber logged each month shall be settled and paid for by the party of the second part on the 15th of the following month until said timber is fully paid for. The party of the second part, his successors and assigns agree to take and remove said timber and pay for the same as above set forth within five years from the date of this contract. . . . The sum of two thousand dollars shall be deposited by the party of the second part in the Capital National Bank of Olympia, to the credit of the guardian of the minor children of Ambrose Fred Colvin and Anna Colvin upon the execution of this contract, and said two thousand dollars cash shall be credited to the party of the second part on the last one million feet of timber cut.” The land is divided by a road and by other physical conditions, and is referred to by the parties, and will be by us, as the north and the south side. Prior to the time the contract was entered into, the parties had negotiated between themselves concerning the sale of the timber on the south side. There is no controversy between them as to the amount of timber on that tract. All agree, for the purposes of this suit, that it was 5,825,000 feet. A memorandum showing this amount had been reduced to writing. Cruises of the north side timber had been theretofore made, the quantity of the timber as shown by the cruises varying. The cruises were: Valentine, 5,530,000 feet; Champlin, 4,902,000 feet; and Manning, 4,800,000 feet. The parties met in the office of Mr. Otis in Olympia to reduce their contract to final form, and it was there agreed that the north side timber should be included in the sale and a contract was written so as to include a description of the land upon which" it was growing. Defendant built a logging road into the north side and proceeded to log the land, and has removed all but 390,000 feet, as estimated by witness Moore, a cruiser who was put upon the stand by plaintiffs. Defendant had cut some cedar and ties and spars that were not scaled at the mill, and had removed his active logging operations from the north side. Plaintiffs then brought this action praying for an accounting and a cancellation of the contract. They have endeavored to maintain their action as a suit in equity. The court denied a cancellation of the contract, and an appeal has been taken from the order. Whatever may have been the original theory of the plaintiffs, it seems to us that this is not a suit in equity, but a simple action at law for the amount due on contract. There is neither allegation of fact nor proof of fact to sustain the action as an equitable suit. It is true that plaintiffs, in demanding that which they conceived to be their due, have said that an accounting is necessary and have prayed' for an accounting. Under the contract, plaintiffs were entitled to payment for all of the timber removed during the previous month. Payments were made from month to month. Plaintiffs brought this action at a time when they believed that the defendant was abandoning the north side with part of the timber uncut. They claim no more than this: that they have not been paid all that is due. This fact would not change the controlling principles of law. The action remains as one upon contract, and it cannot be made an equitable suit by a demand for an accounting unless that demand is based upon some reasonable ground justifying equitable interference. There is no allegation that an accounting is necessary to prevent a multiplicity of suits. There is no fiduciary relation between the parties, nor is it alleged,, nor does the proof show, that mutual accounts have been kept by the parties and that they are so involved that a jury would not be likely to arrive at the true state of the account. The fact that the proof is difficult or that the proof is largely in the keeping of the opposite side, is not enough in itself to justify equitable interference. In fact, the proof in this case upon either side is quite simple. It is purely a question of the amount of timber cut by defendant. The payment is a mere matter of calculation. It seems to us that counsel have confused the words “accounting” and “payment.” If every difference between parties to a contract as to the amount due thereon would justify an accounting, there would be no such thing as an action at law for breach of contract. Nor can the character of the action be fixed by the fact that plaintiffs have used phrases and demands peculiar to equity. A court will look to the substance of the pleadings and to the character of the proof in determining the character of the proceeding. In Knowles v. Rogers, 27 Wash. 211, 67 Pac. 572, an action was brought as a law action. After trial, “the action was purely equitable.” So in this case, there was no pretense of reliance upon equitable principles in the trial of the case. The court determined a simple issue of fact, and entered a money judgment for the amount he found due. Defendant has been quick to appreciate the legal situation of the plaintiffs, and in the court below and in this court has insisted that the trial judge should have made findings of fact and conclusions of law. To save the point, findings and conclusions were proposed and were refused. Counsel for defendant has brought his case squarely within the following decisions of this court: Bard v. Kleeb, 1 Wash. 370, 25 Pac. 467, 27 Pac. 273; Kilroy v. Mitchell, 2 Wash. 407, 26 Pac. 865; Wilson v. Aberdeen, 25 Wash. 614, 66 Pac. 95. We would be glad to hold, if it were possible to do so in the light of our previous decisions and Rem. & Bal. Code, § 367 (P. C. 81 § 645), that the refusal of the court to make findings was error without prejudice, but the statute and the duty that is upon us to follow rules of practice and procedure arising out of the construction of statutes compels a holding that the error was prejudicial to the right of the defendant. Findings, under Rem. & Bal. Code, § 368 (P. C. 81 § 647), except as qualified as to their weight by § 1736 (P. C. 81 § 1225), stand as the verdict of the jury. In one of our earlier cases, it is said: “Judgments of law are founded upon general or special verdicts of juries, or findings of the court which take the place thereof. Without such verdicts or findings, there is nothing to support the judgment.” Kilroy v. Mitchell, supra. The purpose of § 367 is to permit, if not to encourage, appeals without bringing up a statement of facts, for, as is said in the Kilroy case just cited, “a judgment at law will usually stand or fall upon the verdict or findings, without any reference to the evidence as a whole.” The first ruling upon the question before us is found in Bard v. Kleeb, supra. Our court reviewed the California cases and noted the confusion that had arisen in that state by reason of the courts’ attempts to find a way around a similar statute when occasion seemed to require it. It is there said: “We have the opportunity, to shape the practice in this state so that our successors may not have to repeat the helpless plaint of the California supreme court,” and it was accordingly held that a recital in a judgment that “the court finds the matters and things set forth in the complaint are true” was not a compliance with the statute. In a later case, Wilson v. Aberdeen, 25 Wash. 614, 66 Pac. 95, the statute was held to be mandatory. So far as we are informed, there has been no departure from the rule of these cases in law. actions. The point raised by counsel for defendant is well taken. But it does not follow that the action will be reversed and remanded for a new trial. While the statute, Rem. & Bal. Code, § 307 (P. C. 81 §303), has never been invoked, so far as we know, in a case like this, it seems to us to be peculiarly applicable. It is provided: “The court shall, in every stage of an action, disregard any error or defect in pleadings or proceedings which shall not affect the substantial rights of the adverse party, and no judgment shall be reversed or affected by reason of such error or defect.” In the case at bar the testimony has been taken. No right of either party will be conserved by a new trial. The case fails here because the refusal of the trial judge to make findings “affect(s) the substantial rights of the adverse party.” This can be corrected, if the case is remanded with instructions to the lower court to make findings and enter a judgment thereon. There is no reason in law or sound sense for a retrial. The judge had and will have the whole testimony before him and he can find, presumptively at least, the same facts and draw the same conclusions as he would if the testimony were taken over again. We have, therefore, determined that this case shall be remanded to the court from whence it came, with instructions to the trial judge to cause findings to be prepared and to enter judgment thereon from which either party may appeal. Defendant will recover his costs in this court. The taxation of the costs of the trial in the court below will be reserved' until the final disposition of this case. Crow, C. J., Gose, Morris, and Parker, JJ., concur.

The opinion of the court was delivered by Scott, J. — By an act of the legislative assembly, approved March 21st, 1893 (Laws p. 462), a board to be known as “The State Capitol Commission” was created for the purpose of erecting a state capítol building; said board to consist of five members, of whom three were to be appointed by the governor by and with the advice and consent of the senate. The appellant was one of the members originally ap-' pointed by the governor to a position on said commission under the provisions of this act. He held this office until the 6th day of February, 1894, when the governor filed in the office of the secretary of state an order removing appellant from said office, and appointing respondent to fill the vacancy caused by the removal, a copy of which order was duly served on appellant. The respondent duly qualified and entered upon the duties of the office, and thereupon appellant brought this information in the nature of quo wa/rram,io in the superior court of Thurston county, for the purpose of trying the question of the title to said office, as between himself and the respondent; alleging in his information, after setting forth the facts hereinbefore stated, that the removal was made by the governor without authority and without notice to him of the pend-ency of investigation of any charge or charges against him of misconduct in office, and without having given him any opportunity whatever to defend himself against any such charge or charges. To this information respondent demurred on the ground that the same does not state facts sufficient to constitute a cause of action, and upon the further ground that it appears affirmatively from said information, that the relator was duly and legally removed from said office and the defendant duly and regularly appointed to fill the vacancy, and had duly qualified and entered upon the duties of said office. The court below sustained the demurrer, and appellant electing to stand upon his information, judgment was rendered in favor of the respondent, from which judgment the relator took his appeal to this court. The act creating said board contained the following clause relating to the term of office: “The commissioners so appointed shall hold office till the completion of said building and the acceptance thereof by the state unless sooner removed for .cause by the governor. 5 ’ No way was specified in said act as to the manner of such removal. The only other legislation upon the subject is found in an act approved March 10, 1893, which is as follows: “Section 1. The governor of the State of Washington is hereby authorized and empowered to remove from office all state officers appointed by him not liable to impeachment for incompetency, misconduct or malfeasance in office. ‘ ‘ Sec. 2. Whenever the governor is satisfied that any officer not liable to impeachment has been guilty of misconduct or malfeasance in office, or is incompetent, he shall file with the secretary of state a statement showing his reasons with his order of removal, and the secretary of state shall forthwith send a certified' copy of such order of removal and statement of causes by registered mail to the last known postoffice address of the officer removed. ‘ ‘ Sec. 3. At the time of making the removal from office herein provided for, the governor shall appoint some proper person to fill such office, who shall forthwith demand and receive from the officer removed the papers, records and property of the state pertaining to the office and shall perform the duties of such office and receive the compensation thereof until his successor is appointed. ’5 This act seems to have been passed in pursuance of § 3, art. 5 of the constitution, which provides that— “All officers not liable to impeachment shall be subject to removal for misconduct or malfeasance in office, in such manner as may be provided by law.” The office in question is a state office, and such officers do not fall within the class of state officers liable to impeachment. The order removing appellant as a member of said commission specified that it was for misconduct in office. It is contended by appellant that he could not be removed until after a hearing upon charges whereof he should have notice and an opportunity to appear and defend. It is conceded that no such notice was given or hearing had. A long line of authorities have been presented and an able argument made upon the proposition that- where an officer has been appointed for a definite tei’m and is only subject to removal for cause, he cannot be removed except in pursuance of a finding against him upon charges constituting a cause, of which he has had notice and an opportunity to contest; and while there are some cases to the contrary, we are well satisfied that the great weight of authority is with the appellant, and the question to be determined is whether this case falls within that class. This depends upon the question as to whether such term is a fixed and definite one within the contemplation of such rule. The office is not one provided for by the constitution, but was created by legislative enactment. If the term depended solely upon the provision in the act that, “the commissioners so appointed shall hold office till the completion of said building and the acceptance thereof by the state, ’5 we would regal’d it as a fixed and definite one,' as much so as if the act prescribed that the term should continue for two years. But it does not depend upon this provision exclusively. In enacting the law the legislature recognized the fact that public interests might require the term of service of any particular appointee to be terminated before the completion and acceptance of the building, and consequently provided that the persons appointed should only so hold, “unless sooner removed for cause by the governor.” It will be noticed that no cause is specified in the act, nor any manner of removal other than it shall be by the governor. Owing to this failure to point out any method of removal, it seems clear that the legislature must have had in view the prior act relating to removals by the governor, and if such is the case the two acts should be construed together in this connection. The fact that the last act contains the clause that it does with regard to removals lends force to the view that it was intended as a limitation of the term, and that the term was intended to be an indefinite one, depending, in part as to its limitation, upon the happening of the contingency contained in the clause. Otherwise, it would have been unnecessary to have inserted this clause, for the prior act conferred the power to remove, generally, upon the governor. The case presented varies in this respect from many of those cited, and strengthens the respondent’s position. If the clause relating to removals by the governor in the act creating the board depended entirely upon the constitutional provision respecting removals, independent and ex- elusive of the prior legislative enactment, it would probably be inoperative on account of indefini'teness in failing to prescribe any manner of proceeding, and it might be open to the further objection that the question to be determined is a judicial one and the governor, as such, has no judicial power. Such power is expressly vested by our constitution in the courts. It is true the legislature may create other courts than those specified by the constitution — “inferior courts,5 ’ according to the language used, but inferior perhaps only in the sense that the jurisdiction would be special and limited and not general. There is no question but that the legislature could have constituted the governor, or any person or body it saw fit to, a court to determine such questions, and have made such determination final. But there was no attempt whatever to do this. It is a well settled rule that legislative enactments should be so construed as to be given force and rendered operative, if practicable, under recognized rules of construction. Therefore, it seems necessary, in order to give the latter act force in this particular, that it should be construed in conjunction with the prior act relating to removals from office. It is not contended by appellant that this act is unconstitutional except only incidentally in alluding to the fact that it lays down an additional ground for removals from office to those contained in the constitution, viz., the incompetency of the incumbent, which is not involved in this case. As appellant has not attacked the act upon constitutional grounds in connection with this case, we do not question it, for it is well settled that the courts will approach such questions with the greatest caution, and that acts of the legislature will not be held void or unconstitutional unless the question is directly involved and the conflict clearly apparent. Furthermore, if the act should be held unconstitutional as applying to an office created by the constitution, or as to one created by the legislature with a definite prescribed term, it seems to us it may yet have force in connection with the removal clause in the law creating this commission. Neither does appellant maintain that these acts should not be construed together, but contends that in any event he was entitled to a notice and a hearing, as the removal could only be for cause. It is contended that a removal for cause involves a direct attack upon the reputation of the officer, and, although the rule that a person has a vested right in an office no longer obtains in this country, that such officer nevertheless has a right to be heard upon any charges brought against him where a removal can only be had for cause. The authorities presented are based upon the propositions that a summary removal without a hearing violates the rights of the individual, and is repugnant to our principles of government. There is much that may be said in this connection. Although the individual has no vested right in an office to which he has been appointed or elected, the public has an interest in retaining an efficient public servant, and it may be said in this case that the object of the legislature in creating the state capítol commission was to obtain the combined judgment of the members of the commission upon the matters entrusted to them, and if the governor can summarily remove a member of said commission it in effect destroys the purpose of the act in this direction, for in case a majority of said board should not agree with the governor upon any proposition it would only be necessary for him to remove the opposing members and appoint other persons in their places, and thus the action of the board would be in effect but the action of the governor. Upon the other hand it must be conceded that where an officer is disqualified for any reason to perform the duties entrusted to him, the rights of the public can best be sub-served by providing for a summary removal, to the end that a delay in the prosecution of public matters will not be necessitated and public interests jeopardized until such matters can be judicially determined by possibly a protracted litigation. ■ The foregoing questions are ones of public policy, to be addressed to and determined by the legislature, but within, of course, constitutional limits. It is not contended that the governor would not have had power to remove appellant for cause after giving him notice and an opportunity to be heard in his defense; nor is it contended that such a hearing would not be a final one. If then, according to a supposititious case put by appellant, the governor should be disposed to act unfairly and arbitrarily in the first instance, he could as well act regardless of the merits of the showing made upon such hearing, and it is difficult to see how the rights of the incumbent would be any better protected or subserved by such a hearing. Under such circumstances the right to be heard would afford but cold comfort indeed. It seems to be well settled that the legislature in creating an office may limit the duration of the term in any way it deems fit, if there is no constitutional provision which would fix the term. It might make it determinable at the pleasure of the governor or any other person. In this case the power was entrusted to the governor — to act, it is true, upon certain grounds — yet his action or non-action would be purely discretionary. The courts could no more compel him to act than they could review his action when taken. The legislature saw fit to confide this matter to him, and as to the argument that it might result in a failure to get the benefit of the judgment of a board of men, it will be observed that the nominating of these men was reposed in the governor in the first instance. The fact that they were to be confirmed by the senate would not alter the matter in this respect materially, for a failure to confirm is excep tional, and in this case the appointments were made after the legislature had adjourned, and there has been no confirmation. It may fairly be said that by inserting the removal clause in the last act in view of the former act, the intention was not to fix a definite term, and that the clause was made a part of the provision fixing the term, to the end in effect that the persons appointed should only hold office so long as they should perform their duties to the satisfaction of the governor. The duration of their official life was confided to his discretion in this particular. Whether or not this was a wise or a just provision was for the legislature to determine. The legislature did determine it, and appellant accepted the office with this condition attached to it. Having in view the former act, the provision in effect was that the governor should only act in case of the incompetency, misconduct or malfeasance of the incumbent, but the determination of the existence of any of these causes rested with the governor. Now the manner of proceeding and the right to contest must be determined by the act. What was the legislative intention? The act does not in terms provide for a hearing or give a right to a contest, but it would not follow from this necessarily that there need not be any hearing, and that the appellant did not have a right to controvert the existence of the cause, and we should hold that he did have if there was nothing other than this to determine what the intention was, if the act could be operative at all where no manner of proceeding is pointed out. But in addition to the fact that there is no specification as to this, the act is specific as to the manner of proceeding otherwise. It provides that the governor shall file with the secretary of state a statement showing his reason, with his order of removal, and that the secretary of state shall forthwith send a certified copy of such order of removal and state ment of causes by registered mail to the last known post-office address of the officer removed. This is inconsistent with the claim that there must be a prior hearing, for so much particularity would then be unnecessary. The fact that the reason or cause of the removal must be stated in the order would lend some force to the view that such action was not intended to be final. This is not claimed, however, and the act elsewhere settles the matter otherwise. Possibly it would not be final if a cause other than those enumerated should be specified in the order. But this question is not involved in the present case. The act further provides that at the time of making the removal the governor shall appoint another person to fill such office, who shall forthwith perform the duties of the office. This is inconsistent with any view that such action was not intended to be final; for if the governor could not conclusively end the incumbent’s term of office, he should not be allowed to deprive him of a part of his term, and this both from the individual and a public standpoint. Again, and most important of all, the act provides for such action whenever the governor is satisfied that a/ny of the enumerated causes exist. It does not say how the governor is to be satisfied, and the manner in which he becomes satisfied cannot be inquired into. No one can well read this act and be in doubt as to the legislative intention. It is clear and certain, and it must be upheld unless void upon constitutional grounds. There is no question but that the specific terms of the act were complied with, and if the act is valid the governor presumptively performed but a plain duty enjoined upon him by the legislature. While the act is not directly attacked as unconstitutional, it is inferentially, perhaps, on the ground that the constitution, as bearing upon the act creating the board, requires a notice to the incumbent, and an opportunity to be heard before final action. But, never theless, it may be construed in connection with the clause aforesaid contained in the later act, in arriving at the in tention as to fixing the duration of the term. A case nearly like this, coming from a state where the rule contended for by appellant is recognized where the term is a fixed and definite one, is that of People v. Whitlook, 92 N. Y. 191. The mayor of Syracuse had authority to remove the officer in question “for any cause deemed sufficient to himself.” This is no stronger than the language used before us, whenever the governor is satisfied of the existence of any one of the causes enumerated. The act involved in the case cited, which was in force when the officer was elected, provided that he might ‘ ‘ be removed for cause in the same manner as sheriffs are removed. ’ ’ The act under which the removal was made was passed while he was in office. The court held that, “the office was created by the legislature, and they might abridge its terms by express words or specify an event upon the happening of which it should end, ’ ’ and that the event specified was removal by the mayor; also, that such action might be had without any notice or hearing. Another very similar case is that of State v. McGarry, 21 Wis. 502. The statute defining the powers of the board of supervisors of Milwaukee county contained this language: ‘ * Said board shall also appoint one inspector for said house of correction . . . who shall hold his office for the term of two years, commencing on the first Monday of January succeeding his appointment unless sooner removed by said board for incompetency, improper conduct or other cause satisfactory to said board. The cause of such removal shall be particularly assigned in writing and entei’ed upon the minutes of said board, with the ayes and noes upon the adoption of the vote for such removal. ’ ’ The court held that the action of the board in removing the incumbent in the manner specified for one of the causes assigned was final and not subject to review; that the power of the board was absolute when acting within the scope of its power, and that the only question which could be reviewed was as to whether the board kept within its jurisdiction and had acted upon a cause assigned for removal under the statute. Persons were examined before the board, but without being sworn as witnesses, and the defendant was not permitted to cross examine them. The court held that this was immaterial, and that the board might have proceeded ex parte without notice to the incumbent and without any examination of witnesses formally or otherwise. State v. Hawkins, 44 Ohio St. 98 (5 N. E. 228), was a case where the governor removed a police commissioner for official misconduct. It was contended that the power of removal was judicial and could not be exercised by the governor, and that the court might look to the evidence to say whether the govei'nor acted on sufficient grounds. The court determined both questions in the negative, and held the exercise of such power by the governor to be administrative in character. In this case notice had been given and a hearing was had, but the law which authorized the removal for official misconduct did not contain the clause 1 ‘ whenever the governor is satisfied. ’ ’ O'Dowd v. City of Boston, 149 Mass. 443 (21 N. E. 949), was a case where a subordinate had been removed by a board of directors under a law which provided that such board ‘ ‘ may remove such subordinates for such cause as they may deem sufficient and shall assign in their order for removal.” The removal was a summary one without any notice or hearing. It was contended that the statute required a removal for cause, and that the import of the statute was that there should be charges stating the cause of removal, and a hearing and adjudication upon them; and that the words “for cause” have acquired a technical meaning, in which it will be presumed the legislature used them. The court held that these words were qualified by the other words authorizing the board to remove for such cause as they determined to be sufficient, and sustained the removal, holding that a notice and hearing was not required. The court said the intention of the statute seemed to qualify a removal at pleasure by requiring a record to be made of the cause, and that with or without a hearing there was a record of the cause of removal, and the only appeal in either case was to public opinion. State, ex rel. Sweeney, v. Stevens, 46 N. J. Law, 344, was a case where a jailer was removed by the board of chosen freeholders without any hearing. The appointment and removal were made under a statute which provided that “the board of freeholders shall appoint some proper person to be the jailer or keeper of the jail of said county, who shall hold his office for the term of five years, and until another be appointed in his stead; but such jailer may at any time be removed from office, by a vote of two-thirds of all the chosen freeholders of the said county, for the time being.” The court said that “the legislature, in creating the office, had the right to provide for its vacation in such manner as they saw fit, and in ascertaining what the manner is, we must take their language in its ordinary import;” that the statute in effect confided the tenure of office to the discretion of two-thirds of the members of the board, and that the board might act regardless of the fact as to whether there was any just cause for removal. Also, see Throop on Public Officers, §§345-396. Some of the cases cited go further and hold where the term is a fixed and' definite one, and where removal can only be had for cause existing, that the authority to remove may be vested in a person as a discretionary one, and may be exercised without a notice or hearing, and not sub ject to review. But, as stated, the weight of authority is against this. Nor do counsel for respondent undertake to maintain otherwise in this case. But contend that the two acts in question here must be construed as a limitation upon the term of the person appointed, and consequently that the term is in so far an indefinite one, and their contention in this respect must be sustained. Affirmed. Dunbar, C. J., and Hoyt and Anders, JJ., concur. Stiles, J. — Solely on the ground that this was not a constitutional office, I concur in the result. -

The opinion of the court was delivered by Fullerton, J. The appellant brought an action in the superior court of Pierce county against the J. J. Connelly Shoe Company, as defendant, to recover upon certain accounts for merchandise which had theretofore been assigned to him by the wholesale dealers who had sold the merchandise to the defendant. At the time of commencing the action the appellant sued out a writ of garnishment against the respondents A. J. Burchill and William Turner, averring in his affidavit for the writ, in the language of the statute, that he had reason to believe, and did believe, that the respondents were indebted to the defendant the J. J. Connelly Shoe Company, and that they had in their possession and under their control personal property and effects belonging to the defendant. The respondents answered separately to the writ, averring, in substance, that they wTere not indebted to, and did not have in their possession or under their control any personal property or effects of, the defendant. To these answers the appellant filed a controverting affidavit, in which he alleged that he had good reason to believe, and did believe, that the answers of the respondents were incorrect, particularly that part of the answers which averred that the respondents had no personal property or effects in their possession or under their control belonging to the defendant; further averring, in substance, that the defendant had theretofore been engaged in the retail boot and shoe business in the city of Tacoma, and had become indebted in large sums to various wholesale dealers, among whom were the assignors of the appellant; that just prior to the commencement of the action the defendant had undertaken to sell to the respondents, and the respondents had undertaken to purchase of the defendant, its stock of goods in hulk; that the goods had been delivered, and the agreed purchase price paid, without a compliance with the provisions of the statute relating to the sale of stocks of goods in bulk, and was therefore fraudulent and void. The respondents thereupon moved for a discharge upon their answers, which motion the trial court granted, entering a judgment of dismissal of the garnishee action. This appeal is from that judgment. The trial judge sustained the motion to dismiss on the ground that the act of the legislature of March 16, 1901, relied upon by the appellant, is unconstitutional and void; and it is to this question that the arguments are mainly directed. The respondents, however, insist that the controverting affidavits were insufficient to raise an issue, and that the judgment of dismissal should be sustained for that reason. But without following the argument in detail, we are satisfied that the affidavits were sufficient to raise the issue sought to be raised. The statute (§ 5109, Bal. Code) provides that, if the plaintiff should not be satisfied with the answer of the garnishee, he may controvert the same by affidavit in writing signed by him, stating that he has good reason to believe that the answer of the garnishee is incorrect; stating in what particulars he believes the same is incorrect. The affidavits controverting the answers of the respondents sufficiently complied with the statute in this respect. They not only stated that the appellant had good reason to believe, and did believe, that the answers were incorrect in the particular wherein it was averred that the respondents had no property or effects in their possession or under their control belonging to the defendant, J. J. Connelly Shoe Company, but the grounds upon which that belief was based were detailed at length, namely, facts were alleged tending to show that the respondents had taken into their possession and attempted to acquire title to a stock of goods belonging to the defendant under circumstances prohibited by statute. The further question involves the constitutionality of the act of March 16, 1901 (Laws 1901, p. 222; Pierce, Code, § 5346 et seq.). The first section of this act makes it the duty of every person who shall bargain for or purchase any stock of goods in bulk, for cash or on credit, before paying the vendor any part of the purchase price thereof, to demand of and receive from the vendor a written statement showing the names and addresses of all of the creditors of the vendor, together with the amount of such indebtedness, whether due or to become due, owing to each of such creditors, verified according to a form set out in the statute. The second section makes “fraudulent and void” any sale of a stock of goods in bulk unless the vendee demands and receives from the vendor the statement mentioned in the first section, verified as therein provided, “and without paying, or seeing to it that the purchase money of said property, is applied to the payment of the bona fide claim of creditors of the vendor as shown upon such verified statement, share and share alike.” The third section makes it perjury on the part of a vendor to make and deliver a statement which does not include all of the creditors of the vendor, with the correct amounts owing to each of them, or which contains any false or untrue statement, and provides a punishment for the same. The fourth section declares that any sale or transfer of a stock of goods out of the usual or ordinary course of business or trade of the vendor or whenever substantially the entire business or trade theretofore conducted by the vendor shall be sold or conveyed, or whenever an interest in or to the business or trade shall be sold or conveyed, or attempted to be sold or conveyed, shall be a sale in bulk, in contemplation of the act; followed by a proviso to the effect that, if the vendor shall produce and deliver a written waiver of the provisions of the act, then this section shall not apply. The fifth and last section provides that nothing in the act contained shall apply to sales by executors, administrators, or receivers, or to sales made by any public officer acting under judicial process. The first objection to the constitutionality of the act is that it deprives persons of their property without due process of law. As we understand the argument, the contention is not that the act deprives an owner of property of his day in court, where his property rights are judicially called in question, or that it in any manner authorizes the actual physical taking by one of the property of another, but it is that as the term “property,” in legal signification, includes in its meaning the right of any person to possess, use, enjoy, or dispose of a thing, the act violates the constitution, inasmuch as it restricts the right of an owner to dispose of his property. The act, it is true, does prohibit owners of certain kinds of property from disposing of it in a particular way, without complying with certain conditions, but it is not for that reason necessarily unconstitutional. While the legislature may not constitutionally declare that void which in its nature is, and under all circumstances must be, entirely honest and harmless, yet it may, under its police powers, place such reasonable restrictions on the right of an owner in relation to his prop erty as it finds necessary to protect the interests of the public, or prevent frauds among individuals. If this were not so, it would be easy to find many unconstitutional acts on the statute boohs. Statutes familiar to every person, such as those regulating the manner of conveying real property, regulating the mortgaging and sale of personal property, requiring certain articles of food made in imitation of other well known articles to be branded with their true names, regulating the sale of poisons, and the like, are statutes restricting the rights of an owner in relation to his property, yet such statutes, in so far as they tend reasonably to prevent injury to the public, and frauds among individuals, are uniformly held constitutional. Turning to the act before us, its purpose is plain. It was intended to prevent retail dealers in goods, wares, and merchandise from defrauding their creditors. As such, it is among the undoubted subjects of legislation; and the real question to be considered, therefore, is, is the act so far an abuse of the power of legislation as to take it out of the rule of due process of law ? In our opinion, it is not. It is a general rule that, when the business is a proper subject of police regulation, the legislature may, in the exercise of that power, adopt such measures as they see fit to correct the existing abuses, so long as the measures adopted have relation to and a tendency to accomplish the desired end, and violate no direct constitutional provision. This act is within the rule. That it has relation to and will tend to prevent the particular frauds aimed at, cannot be doubted. ÜSTor is there any direct constitutional provision against the enactment of such laws. Whether the act is more harsh than was necessary, or whether it is not the wisest or best that could have been adopted, are legislative questions, with which the courts have nothing to do. It is enough for the court to know that the act is within the legislative power. It is next said that the act violates that provision of the constitution which prohibits the legislature from granting to a class of citizens privileges and immunities which upon the same terms shall not equally belong to all citizens; in other words, it is class legislation. In Redford v. Spokane St. Ry. Co., 15 Wash. 419 (46 Pac. 650), we held that, where a law is uniform so far as it operates, its constitutionality is not affected by the number of persons within the scope of its operation; and, applying this principle, we held in Fitch v. Applegate, 24 Wash. 25 (64 Pac. 147), that a law giving laborers in certain enumerated industries liens upon the general property of their employers was constitutional. The same principle is applicable to the case in hand. It is true that the mere fact of classification is insufficient to relieve a statute from the reach of this clause of the constitution, — that it must appear that the classification is made upon some reasonable and just difference between the persons affected and others, to warrant classification at all; but, applying this test, the act is sufficient. The reason is found in the nature of the business itself. It is well known that the business of retailing goods, wares, and merchandise is conducted largely upon credit, and furnishes an opportunity for the commission of frauds Upon creditors not usual in other classes of business. In fact, charges of fraud made against retail dealers who have sold their stocks in bulk are among the most common with which the courts are called upon to deal. Legislation, therefore, which restricts the absolute right of persons engaged in such business to transfer their property, so long as it applies alike to all persons engaged therein, is not class legislation, within the meaning of the con stitution, merely because it does not apply to all owners of property. Ror is the act in restraint of trade. It prevents no one from dealing in the usual and ordinary course, nor does it prevent the selling of stocks of goods in bulk. It restricts only the application of the proceeds when stocks are sold in the latter manner. It may be that, because of this, sales in this manner will not be so readily made as formerly; but, if this be so, it is only another case where private desires must yield to the public good, and not one of unconstitutional enactment. As to the particular provisions of the act, there is, indeed, much that may be criticised, and doubtless certain of its provisions will require construction when attempt is made to work it out in detail. But the former are not so gross as to authorize the courts to declare the law a nullity, and the latter can best be determined when the questions actually arise. The judgment of the trial court is reversed, and the cause is remanded, with instructions to proceed with a hearing upon the merits. Reavis, O. J., and Dunbab, Andebs and Mount, JJ., concur.

■Donworth, J. Household Finance Corporation, appellant here, appealed to the superior court for Thurston county from orders of the supervisor of banking which denied its applications for licenses for a place of -business in Vancouver and for a second place of business in Seattle. The Washington small loan act (Laws of 1941, chapter 208, p. 609; Rem. Supp. 1941, §§ 8371-1 to 8371-27, inclusive) provides that any aggrieved applicant for a license may appeal to the superior court for Thurston county. The appeal section is as follows: “Whenever the Supervisor [of Banking] shall deny an application for a license or shall revoke or suspend a license issued pursuant to this Act, or shall issue any specific order or demand, then such applicant or licensee thereby affected may, within thirty (30) days from the date of service of notice as provided for in this Act, appeal to the Superior Court for the State of Washington for Thurston County. The appeal shall be perfected by serving a copy of the notice of appeal upon the Supervisor and by filing it, together with proof of service, with the Clerk of the Superior Court of Thurston County. Whereupon the Supervisor shall, within fifteen (15) days after filing of such notice of appeal, make and certify a transcript of the evidence and of all the records and papers on file in his office relating to the order appealed from, and the Supervisor shall forthwith file the same in the office of the Clerk of said Superior Court. The reasonable costs of preparing such transcript shall be assessed by the Court as part of the costs. A trial shall he had in said. Superior Court de novo. The applicant or licensee, as the case may be, shall be deemed the plaintiff and the State of Washington the defendant. Each party shall be entitled to subpoena witnesses and produce evidence to sustain or reverse the findings and order or demand of the Supervisor. During the pendency of any appeal from the order of revocation or suspension of a license, the order of revocation theretofore entered by the Supervisor shall be stayed and any other order or demand appealed from may be stayed in the discretion of the Court. Either party may appeal from the judgment of said Superior Court to the Supreme Court of the State of Washington as in other civil actions.” Laws of 1941, chapter 208, § 23, p. 622; Rem. Supp. 1941, § 8371-23. (Italics ours.) At the trial, each side presented its evidence to the superior court. It was appellant’s position that by a trial de novo was meant a trial after which, without regard to the supervisor’s order, the superior court could decide whether or not one or both of the licenses sought should be issued. On the other hand, respondent contended that the superior court’s inquiry was limited to whether or not the supervisor had abused his discretion and had acted arbitrarily or capriciously. The trial court at the outset took appellant’s view as to the extent and character of the inquiry contemplated by the statute, and admitted evidence on that theory. After the trial was concluded, the trial court in its memorandum decision reversed its first ruling and held that it had been wrong as to the permissible extent and scope of the inquiry and announced that it would consider the evidence only to the extent of determining whether or not the supervisor had acted arbitrarily or capriciously. The extent of the review contemplated by the italicized portion of this section constitutes the crux of this controversy. The trial court correctly interpreted the phrase “trial de novo” as used in the above-quoted section of the statute when it said that the phrase “ . . . means a new and independent trial on the law and facts from which the Superior Court shall determine whether or not in this case the license should be granted in view of all the facts and circumstances as disclosed by the evidence and the law applicable to the case.” It was also correct in its ultimate conclusion that the scope of its inquiry under the statute was limited to determining whether or not the supervisor had acted arbitrarily, capriciously, or contrary to law. These two rulings of the trial court are not inconsistent with each other because the superior court’s original construction of the appeal section of the statute, based upon what seems to us the true legislative intent, would render the italicized sentence of Rem. Supp. 1941, § 8371-2-3, unconstitutional. The appeal there provided for goes beyond anything provided by way of court review in any of the drafts of the uniform small loan act, as set forth in Hubachek, “Annotations on Small Loan Laws.” The legislature in enacting this statute expressed dissatisfaction with what it may have considered to be prior judicial abdication in reviewing” the orders of administrative boards and commissions, which have been uniformly upheld in the absence of a showing that they were arbitrary, capricious, or contrary to law. We are convinced that the legislature, whether or not it was dissatisfied with the application of the arbitrary or capricious test, with its minimum of judicial review to determine the validity of administrative action, has attempted to place in the superior court for Thurston county powers with which it cannot constitutionally be invested. It seems unnecessary to labor the fundamental doctrine of the constitutional division of powers and the reasons therefor. In this state, the legislative power is “vested in the legislature, consisting of a senate and house of representatives,” but with the powers of initiative and referendum reserved to the people (Washington constitution, Art. II, § 1, as amended in 1912 by the seventh amendment); the judicial power of the state is “vested in the supreme court, superior courts, justices of the peace, and such inferior courts as the legislature may provide” (Art. IV, § 1); and the executive department consists of the governor and other officers named in Art. Ill, § 1 of the constitution, with the “supreme executive power” vested in the governor (Art. Ill, § 2). We recognize that definite and analytical lines marking the separation of powers have not been and cannot be drawn. There is necessarily some mingling and overlapping of powers between the three separate departments of our government. People ex rel. Rusch v. White, 334 Ill. 465, 166 N. E. 100, 64 A. L. R. 1006 (1929); State v. Huber, 129 W. Va. 198, 40 S. E. (2d) 11, 168 A. L. R. 808 (1946). The separation of governmental powers “. . . is not a doctrinaire concept to be made use of with pedantic rigor. There must be sensible approximation, there must be elasticity of adjustment, in response to the practical necessities of government, which cannot foresee today the developments of tomorrow in their nearly infinite variety.” Mr. Justice Cardozo in his dissenting opinion in Panama Refining Co. v. Ryan, 293 U. S. 388, 79 L. Ed. 446, 55 S. Ct. 241. It is the fusion of the different types of governmental power to deal with specific problems which has resulted in the de velopment of the administrative process. Schwartz, American Administrative Law 18. However, we are not here concerned with a twilight-zone situation. The licensing and regulation of small loan companies (which are permitted to make loans at rates which had been theretofore unlawful and which are still unlawful when made by anyone except such a licensee) is an exercise of the police power and essentially a legislative and administrative function. Cavanaugh v. People, 61 Colo. 292, 157 Pac. 200 (1916), cited and approved in Kelleher v. Minshull, 11 Wn. (2d) 380, 119 P. (2d) 302 (1941); People v. Stokes, 281 Ill. 159, 118 N. E. 87 (1917); State ex rel. Downing v. Powers, 125 Ohio St. 108, 180 N. E. 647 (1932); People v. Blumenthal, 157 N. Y. Misc. 943, 284 N. Y. S. 873 (1936); State v. Huber, supra. It is clear that no “elasticity of adjustment” can make the determination relative to the issuance of a license, to operate a small loan business essentially or primarily a judicial power. If the statute had provided that applications for such licenses should be made to the superior court for Thurston county in the first instance, and had thereby charged that court with the responsibility of determining whether or not such licenses should issue, it would be agreed by everyone that the statute had imposed a nonjudicial power upon the court and that the portion of the statute so providing was unconstitutional. The addition of another step (original application to the supervisor of banking) does not place that determination any more within the scope of judicial power if, when the matter comes to the court, it is to be disposed of in the same manner as though it had originated there and without regard to the action of the supervisor from which the appeal is taken. We are constrained to hold that the portion of Rem. Supp. 1941, § 8371-23, which purports to vest in the superior court for Thurston county the right to reverse on a trial de novo a decision of the supervisor with reference to the. granting of such a license and, in effect, to substitute its judgment for that of the supervisor as to whether or not a license should issue, is unconstitutional as an attempt to vest a nonjudicial power in a constitutionally created court. We must reject this expansion of the court’s power as firmly as we would resist a reduction of its rightful authority. Hunstiger v. Kilian, 130 Minn. 474, 153 N. W. 869 (1915); Peterson v. Livestock Comm., 120 Mont. 140, 181 P. (2d) 152 (1947). See, also, Silven v. Board of Com’rs of Osage County, 76 Kan. 687, 92 Pac. 604 (1907); Danielley v. City of Princeton, 113 W. Va. 252, 167 S. E. 620 (1933). There is language in Morgan v. Department of Social Security, 14 Wn. (2d) 156, 127 P. (2d) 686 (1942), from which it can be argued—and appellant does so argue—that we there upheld the equally broad appeal provision contained in initiative measure No. 141 (Laws of 1941, chapter 1, p. 3, particularly § 9; Rem. Supp. 1941, § 9998-34 et seq., particularly § 9998-42), saying that it was not unconstitutional as purporting to invest the court with executive powers. Actually, we held that the department of social security had not acted illegally, arbitrarily or capriciously in determining the amounts the appellants were to receive as senior citizens. We recognize that there is a wealth of authority to support respondent’s position that where the only review of an administrative order that is constitutionally possible is on the question of whether the administrative body or officer acted arbitrarily, capriciously, or in violation of law, it will be held that a provision for a trial de novo means only that the appellate or reviewing court will be limited to a consideration of that particular question on the trial de novo. The basis for such holdings is the rule that, when a statute is subject to two possible constructions, one of which will render it constitutional and the other unconstitutional, the legislature will be presumed to have intended a meaning consistent with the constitutionality of its enactment. Casco Co. v. Public Utility Dist. No. 1, 37 Wn. (2d) 777, 226 P. (2d) 235 (1951); Peterson v. Livestock Comm., supra. That rule should not be applied to the sentence which we have italicized in Rem. Supp. 1941, § 8371-23, for the reason that the presumption that the legislature intended thereby only a review to determine whether the supervisor’s ruling was arbitrary or capricious would be a demonstrably fictitious presumption. By the 1941 act the legislature definitely and drastically changed the appeal provision from that contained in its prior enactment on the same subject in 1937, which provided that the action of the director of licenses was to be “final and conclusive, except for fraud or caprice.” See Laws of 1937, chapter 213, § 3, p. 1037. We cannot in good conscience indulge a presumption that the legislature intended a standard of review which it had deliberately discarded. This holding does not mean that the entire act is unconstitutional, or even that all of § 23 (Rem. Supp. 1941, § 8371-23) is unconstitutional. Without the sentence which we find expresses legislative intent to invest the superior court for Thurston county with a nonjudicial power, there is still a provision for an appeal from an order of the supervisor by reason of the severability clause (Rem. Supp. 1941, § 8371-26) which reads as follows: “If any clause, sentence, section, provision, or part of this Act shall be adjudged to be unconstitutional or invalid for any reason by any court of competent jurisdiction, such judgment shall not impair, affect, or invalidate the remainder of this Act, which shall remain in full force and effect thereafter.” Laws of 1941, chapter 208, § 26. But even if the entire appeal procedure were rendered abortive by the striking of the language heretofore referred to, the supervisor’s action would still be subject to judicial review as to whether he had acted arbitrarily, capriciously, or contrary to law. Althaus v. State, 99 Neb. 465, 156 N. W. 1038; People v. Stokes, supra. Our ruling upon the constitutionality of the portion of § 23, above discussed, does not require that this case be remanded to the trial court for further proceedings. Appellant was afforded full opportunity by the trial court to introduce all the evidence it desired to offer under its broad theory of a trial de novo for the purpose of determining whether the licenses should be granted. It offered thirty exhibits, all of which were admitted. The testimony com prises over four hundred pages and covers a wide range. Appellant was permitted to introduce the testimony of all the witnesses whom it desired to present under its view as to the court’s jurisdiction. Concerning the evidence, the trial court commented in its memorandum opinion as follows: “Applying the same rule [In re Metropolitan Building Co., 144 Wash. 469, 258 Pac. 473] to the case at bar the Court will consider the evidence only to the extent of determining whether or not the Supervisor acted arbitrarily or capriciously. I now hold that to be the extent of the court’s inquiry. “The evidence was largely that of expert witnesses and documents consisting of statistical data compiled by experts and falls within three classifications. (1) Evidence as to the financial ability, character and general fitness of the plaintiff. (2) Evidence comparing conditions of the small loan business in other states, and (3) evidence of business, financial and traffic conditions in and about Seattle and Vancouver. “It must be conceded that plaintiff meets all the requirements as to financial ability and character and fitness. The record of achievement of plaintiff in other states as disclosed in plaintiff’s exhibits D, G, H and J, among others and evidence tending to show that measured by population and or retail sales per licensee in other communities, Seattle is under licensed does not in my judgment have much weight upon the question of the necessity of an additional license. We are concerned here with conditions in the state of Washington and particularly in the localities of Seattle and Vancouver. “A careful study of the evidence applying to both cases and the briefs and the authorities cited convinces me that the findings and order of the Supervisor are fully sustained by the evidence. That his acts are not arbitrary or capricious but are a proper exercise of the discretion granted to him by the statute and the same will be affirmed and the appeals dismissed.” Appellant complains that the trial court in this memorandum decision reversed its previous ruling and held that the question for decision was whether or not the supervisor had acted arbitrarily or capriciously. However, there is nothing in the record to indicate that appellant could have presented any different or additional evidence if the court had so held at the beginning of the trial. Appellant might have then been restricted to presenting less evidence, but it seems to us that the evidence admitted under the broad theory of a trial de novo must have contained all the facts pertinent to the narrower field of inquiry finally fixed by the trial court. On the merits, we think that the judgment of the trial court was correct since it is based on findings of fact which are fully supported by the evidence. We cannot agree with appellant’s argument that the supervisor’s denial of the application for a license in Vancouver based upon the primary finding that “The granting of the license applied for is not necessary to permit adequate service to borrowers and might create a competitive situation among licensees that would encourage the adoption of unwholesome business practices that might be detrimental to the best interests and welfare of borrowers”, was made without application of the guiding standards prescribed by § 4 of the act. Neither can the supervisor’s decision denying the application for an additional license in Seattle be properly held to have been made without regard to such standards. Section 4 (Rem. Supp. 1941, § 8371-4) reads in part as follows: “Upon the filing of such application and the payment of such fees and the approval of such bond the Supervisor shall investigate the facts and if he shall find that [among other things] .... allowing such applicant to engage in business, will promote the convenience and advantage of the community in which the business of the applicant is to be conducted, and that the applicant has available for the operation of such business at the specified location liquid assets of at least ten thousand dollars ($10,000), (the foregoing facts being conditions precedent to- the issuance of a license under this Act), he shall thereupon issue and deliver a license to the applicant to make loans in accordance with the provisions of this Act at the location specified in the said application . . . . ” Appellant contends that the supervisor in denying these applications gave too great consideration to the factor of the ability of existing loaning agencies to handle the small loan business and did not sufficiently consider the reasonably probable effect of the granting of these applications upon the “convenience and advantage” of the respective communities. When the applications for licenses were made, it was the duty of the supervisor under § 4 of the act to “investigate the facts,” and, among other things, find and determine whether the granting of the applications would promote the convenience and advantage of the communities in which the business of the applicant was to be conducted. One of the important factors to be considered by the supervisor was whether the granting of a license to enter a competitive area would have a tendency to bring about excessive solicitation, overlending and other objectionable practices, either on the part of the applicant or those already engaged in the small loan business, because of the increased competition. Experience has shown that the small loan business has to be strictly regulated in order to protect the borrower from dishonest and overreaching practices. Experience has further shown that increased competition does not necessarily result in better service to borrowers nor promote the convenience and advantage of the community. In many cases the granting of additional licenses has had a detrimental effect upon the business and has obstructed the attainment of the beneficent purpose of the act. See 8 Law and Contemporary Problems, pp. 1-204. F. B. Hubachek, in his treatise entitled “Annotations on Small Loan Laws” (1938), points out that the sole purpose of giving the supervisor fact-finding powers was to eradicate the evils which had arisen in the business as a result of unrestrained competition. At page 53 the author says: “Under acts patterned after the first four drafts [of the uniform small loan law] any applicant could demand and obtain a license to engage in business upon paying a fee, filing a bond, and complying with ministerial requirements. It was originally believed that competition and the free flow of capital would produce the best results, particularly in this field where ill-advised restraints had already played havoc. Under this system a large small loan business came into existence. While the supply of money to be lent was large it was not distributed in close accordance with the legitimate demand. In some, localities the supply exceeded the demand for the type of credit which was contemplated by the act. Licenses were issued to do business in localities where the natural demand was insufficient to sustain a properly conducted lending business. In other places the legitimate demand was not supplied. While the maximum rate of charge permitted was primarily responsible for the distribution of capital between states, it became apparent that competition and natural forces alone would not bring about a distribution of capital in which the supply closely approximated the demand, nor would they produce the best results in respects which depended on the character of the licensees. “Where competition was too intense events demonstrated that the public interest was not well served. ‘There is a tendency for excessive competition to increase costs of lending, and consequently to restrain competitive rate reductions.5 There was evidence that some licensees were not operating efficiently or were inadequately financed, either condition obstructing attainment of the objectives of the law. Stock promoters, without practical experience or realization of the commercial importance of fair dealings with borrowers, entered the business to its detriment. “To meet these conditions the recommended system of licensing was changed in 1932. The Commissioner was given fact finding powers the exercise of which permitted wide discretion. The standards established applied both to the qualifications of the applicant and to the conditions in the community where the business was to be conducted. The powers of and grounds for revocation (Section 9) maintain in force, as conditions subsequent, the standards which Section 4 establishes as conditions precedent to the granting of a license.” (Italics ours.) While the supervisor’s findings in these cases may not be as artfully worded as they might be, we think that it is evident from the language used that the supervisor found from his investigation of the facts that additional competition in the two areas would not be promotive of the convenience and advantage of the communities. We cannot agree with appellant’s argument that the supervisor’s, findings were concerned only with the ability of existing licensees to serve the present needs of borrowers and that he failed to give consideration to the probable effect of granting these applications upon the “convenience and advantage” of the respective communities. The supervisor appears to have been of the opinion that the granting of these applications would increase small loan facilities in these communities to a point where the public convenience and advantage would suffer because of too much competition. Even if the court should disagree with the supervisor’s findings, still the court may not substitute its judgment for that of the supervisor upon this question. From the evidence in this case we cannot find that he acted arbitrarily or capriciously in arriving at the findings upon which he based the denial of these applications. Our decision in Kelleher v. Minshull, 11 Wn. (2d) 380, 119 P. (2d) 302, makes it plain that one of the objects of the legislature in enacting the small loan act was to make certain that the needs of the community “were not outrun by the number of such establishments at the risk of defeating the beneficent purposes of the act.” Too many such establishments may be as detrimental to the public convenience and advantage as too few. The judgment of the trial court in each case must be, and hereby is, affirmed. Schwellenbach, C. J., Grady, Finley, and Weaver, JJ., concur.

Gose, J. This is a suit upon two promissory notes. The defendant has appealed from an adverse judgment. The facts are these: Prior to the 5th day of February, 1908, one O. P. Mooney owned and personally conducted a stationery store, in the city of Seattle. On the 30th day of September, 1907, he hired from the respondent, a brother, the sum of $2,000, and gave him his interest-bearing note therefor, payable six months after date. The money was deposited in the bank to the credit of O. P. Mooney, and used generally in the business. On the date first mentioned, O. P. Mooney, his wife, Katy A. Mooney, and William A. Wood, organized the appellant corporation. On- the same day, O. P. Mooney made the following offer to appellant: “O. P. Mooney offers to sell to O. P. Mooney Company the good will and stock and business and all sums of money due him for $33,000, and to take paid-up capital stock for that amount, and he directs that 166 shares be issued to himself, 162 shares to be issued to Kate A. Mooney, and two shares to Wm. A. Wood. O. P. Mooney.” Its acceptance was as follows. “Whereas O. P. Mooney offers to sell to O. P. Mooney Company the good will and stock and business and all sums of money due him for $33,000, and take paid-up capital stock for that amount, Now, therefore, be it resolved that the O. P. Mooney Company accepts said offer of O. P. Mooney, and the president and secretary are directed to issue to O. P. Mooney 166 shares, 162 shares to be issued to Katy A. Mooney, and two shares issued to William A. Wood in full payment of the respective subscriptions to the capital stock. Wm. A. Wood, Secretary.” O. P. Mooney then made the transfer in harmony with the offer and acceptance. Thereupon the appellant issued its capital stock as agreed upon. The business was thereafter carried on by the appellant. The three stockholders were elected trustees, and the trustees elected O. P. Mooney as president and manager, Katy A. Mooney as vice president, and William A. Wood as secretary. O. P. Mooney and Katy A. Mooney continued to hold their respective offices in the corporation until the 26th day of November, 1910, when they resigned and were succeeded by new trustees and officers. William A. Wood continued as secretary and bookkeeper until November 1, 1908, when he was succeeded by Frederick W. Plill, who served in that capacity until the 26th day of November, 1910, when he resigned and a successor was elected. Hill acted in the double capacity of bookkeeper and general manager from the first day of March, 1911, until the 27th day of August, following, when the appellant’s assets appear to have been sold to a third party. On the 29th day of March, 1908, O. P. Mooney gave his personal note to the respondent, payable in sixty days, for the $2,000 which he had hired, and the first note was surrendered. Between that date and July 11, the appellant paid to the respondent $400 on the last named note; and on that date gave him three notes, two of which were for $500 each, due in three and six months respectively, and the third was for $600 due in nine months, and the respondent surrendered the second M°oney note. The appellant’s notes were signed, “O. P. Mooney Co., by O. P. Mooney, President.” There was no consideration for these notes other than the surrender of the Mooney note. The appellant paid the $500 note first maturing. All of the appellant’s books showed the appellant as the maker of these notes and the amount of each thereof. The notes were thereafter shown as a liability against appellant in all of its financial statements to the bank with which it did business, and to the commercial agencies. Interest payments were made from time to time by the appellant, acting through its president and secretary. The last payment was made by Manager Hill, April 11, 1911, after the election of the new officers. There is no evidence that the new trustees knew of the payment at the time it was made, or that Katy A. Mooney knew of the notes until a short time before the commencement of the suit. Manager Hill says that he sent to the new trustees three statements of the resources and liabilities of the appellant. The first one bears date January 14, 1911, and shows “Bills payable, B. P. Mooney, $1,100.” The other two statements bear date respectively March 1, 1911, and May 1, 1911. The former shows bills payable $1,100, and the latter shows the same item, $1,182.87, without disclosing the name of the creditor. O. P. Mooney had the entire management of appellant’s business from the date of its incorporation until he resigned in November, 1910. He and Katy A. Mooney separated on February 5, 1908, and were divorced on April 13 following. O. P. Mooney filed a voluntary petition in bankruptcy in September, 1910, and deceased before the trial of this action. The court found: (1) that the appellant assumed the indebtedness of O. P. Mooney; (2) that the notes were given “with the sufferance and acquiescence” of Katy A. Mooney; (3) that the sale by O. P. Mooney to the appellant was a sale in bulk, and that the statutory affidavit was “neither asked nor demanded;” and (4) that the appellant is estopped to dispute the validity of the notes. In pursuance of these findings, a judgment was entered against the appellant for the full amount of the principal of the two notes, the unpaid interest, attorney’s fees and costs. The first finding, i. e., that the appellant assumed the indebtedness of O. P. Mooney, is contrary to the plain terms' of the offer and acceptance. The entire transaction was in writing. Mooney offered to sell the good will, stock, and business, and all sums of money due him, for $33,000, and to take as a consideration paid up capital stock for that amount, and directed the issuance of 166 shares to himself, 162 shares to Katy A; Mooney, and two shares to William A. Wood. The offer was accepted, the property was conveyed, and the stock was issued as directed. This closed the transaction. The offer and acceptance constituted the contract, and they are plain, detailed, and specific, and no extrinsic aid is needed to interpret them. Parol evidence to establish the assumption of Mooney’s indebtedness was therefore inadmissible. We may say, however, in passing, that the parol evidence was not sufficient to prove the assumption of the indebtedness. Mrs. Mooney says that the subject was not discussed. In this she is supported by the admitted fact that Mooney once personally renewed the note after the appellant took over the property. It is true that Wood said that the appellant paid some of Mooney’s indebtedness, the amount not being stated. But it is also true that Mooney owed more than $12,000 which it did not pay. It is admitted that the trustee Wood knew of the execution of the notes and the payment of the interest. The evidence, however, does not show that the notes were given “with the sufferance and acquiescence” of Katy A. Mooney, the other trustee and stockholder, as found by the court. Her testimony is that she was ignorant of the transaction until after the last payment of interest had been made,-and there is nothing in the record rising to the dignity of evidence to prove the contrary. The record is silent on the third finding, i. e., that a verified statement of the names and addresses of the creditors of Mooney was not given. The finding must have been based ■ upon the legal presumption that it devolved upon the appellant to prove affirmatively that the statute was complied with. No "such duty rested upon it, for two reasons: (1) The action is not grounded on fraud or the failure of the appellant to require the statutory affidavit, but it is grounded upon an alleged express contract for the payment of money to the respondent; and (2) there is no legal presumption that the requirements of the statute were not fulfilled. 16 Cyc. 1082; Sheffield v. Balmer, 52 Mo. 474, 14 Am. Rep. 430. There remains for discussion the contention that respondent chiefly relies upon, that the appellant is estopped by its conduct to question the legality of the transaction. The facts have been stated and need not be repeated. The respondent will be presumed to know that an officer in a corporation, however extensive his apparent authority may be, may not bind his principal in a matter in which he is adversely interested. Mooney could not at the same time act for himself and for his principal, without the full knowledge and free consent of the principal. O’Conner Min. etc. Co. v. Coosa Furnace Co., 95 Ala. 614, 10 South. 290, 36 Am. St. 251; Gallery v. National Ex. Bank, 41 Mich. 169, 2 N. W. 193, 32 Am. Rep. 149. An officer who receives the note or other obligation of a corporation in payment of the personal debt of the officer with whom he deals does so at his peril. The reason is that such a transaction is not in the regular course, but is presumptively ultra vires. Merchants’ Nat. Bank v. Detroit Knitting etc. Works, 68 Mich. 620, 36 N. W. 696; Wilson v. Metropolitan Elev. R. Co., 120 N. Y. 145, 24 N. E. 384, 17 Am. St. 625; Farrington v. South Boston R. Co., 150 Mass. 406, 23 N. E. 109, 15 Am. St. 222, 5 L. R. A. 849; Porter v. Winona & D. Grain Co., 78 Minn. 210, 80 N. W. 965; Pelton v. Spider Sawmill & Lumber Co., 132 Wis. 219, 112 N. W. 29, 122 Am. St. 963; West St. Louis Sav. Bank v. Shawnee County Bank, 95 U. S. 557. In the Wilson case, Judge Parker, who wrote the opinion of the court, said: “Undoubtedly the general rule is that one who receives from an officer of a corporation the notes or securities of such corporation, in payment of, or as security for, a personal debt of such officer, does so at his own peril. Prima facie the act is unlawful, and, unless actually authorized, the purchaser will be deemed to have taken them with notice of the rights of the corporation. (Garrard v. P. & C. R. R. Co., 29 Penn. St. 154; Pendleton v. Fay, 2 Paige, 202; Shaw v. Spencer, 100 Mass. 388.)” In the Farrington case, the rule is thus stated: “An agent cannot properly act for his principal and himself when their interests are adverse, and any person dealing with an agent in a matter affecting his principal, and knowing that the interests of the agent are adverse to those of his principal, ought to be held to the duty of ascertaining that the acts of the agent are authorized by his principal.” The basis of all estoppel is that the party invoking the doctrine has acquired rights in innocent reliance upon acts of the other. Without one innocent party and one negligent party there can be no occasion for the application of the doctrine. Germania Safety-Vault & Trust Co. v. Boynton, 71 Fed. 797; Wheeler v. Home Sav. & State Bank, 188 Ill. 34, 58 N. E. 598, 80 Am. St. 161; Whitfield v. Nonpariel Consol. Copper Co., 67 Wash. 286, 123 Pac. 1078; 11 Am. & Eng. Ency. Law (2d ed.), 439. In the Boynton case, the court, speaking through Judge Lurton, said: “The corporation had no power to lend its credit to Herman and Panic. Its obligations entered into for that purpose would be void in the hands of one who took them with notice. The consent of the stockholders would not strengthen the case. A defect in the power of the corporation is not supplied by the agreement of the corporators.” The rule is thus tersely stated in the Wheeler case: “No fruits of the transaction were received by the company, and its mere acquiescence in the unauthorized acts of its officers in a matter outside of its corporate powers cannot give rise to an estoppel.” In the Whitfield case, the president of the defendant corporation was indebted to the plaintiff and had pledged certain collateral as security for the debt. The plaintiff thereafter exchanged the collateral for a fraudulent certificate of stock, purporting to have been regularly issued by his debtor as president of the corporation, to a third party who had indorsed it in blank. This was sought to be made the basis of an estoppel against the defendant, the principal of the offending officer: In meeting that situation the court said: “Reference to these authorities will show that it is well settled that one who deals with an apparent agent with reference to his private affairs cannot hold a company to an estoppel, but must look to one who has wronged him; for his debt is not thereby discharged, but continues.” McLellan v. Detroit File Works, 56 Mich. 579, 23 N. W. 321, is an instructive case involving facts substantially identical with the facts at bar. The opinion was written by Judge Cooley. There two persons, while carrying on a partnership business, gave the plaintiff two firm notes. Later the partners formed a corporation, taking all the shares of stock except two, and the partnership assets were transferred to the corporation in consideration of the stock issued to the partners. One of the partners who was made president of the corporation assumed to renew the notes three or four times as notes of the corporation, making small payments at each renewal with checks or other paper of the corporation. The avails of the original notes were transferred with the other partnership assets to the corporation. But the evidence showed that the other stockholders were not aware that the president was giving corporate obligations in place of the obligations of the firm. It was held, that the plaintiffs were deemed to have accepted renewals of the notes with knowledge of all.the facts; that they were deemed to have known that an officer of a corporation could have no general authority to give the notes of a corporation to take up the outstanding obligation of its members, and that persons taking such notes from him must at their peril ascertain that the special authority had been conferred. In commenting upon the significance of the transfer of the assets of the partnership to the corporation, the court said: “The fact that the assets of the partnership went to the corporation has no significance in this controversy. The partners were paid for their interest in the assets with stock of the corporation, and the creditors of the partnership lost nothing by it, for the partners continued liable to them, as before, and with, presumptively, as much property as before. That Hayes used checks of the corporation to pay firm debts has, if possible, still less significance..... The fact that nearly all the shares in the corporation were issued to Rowe & Hayes is mentioned in the argument as. tending to the proof of an understanding that the corporation would assume partnership debts. But it was an immaterial fact. The corporation when formed, was not identical with the partnership of Rowe & Hayes, and could not be sued for their debts even if there were no other stockholders.” See, also, Durlacher v. Frazer, 8 Wyo. 58, 55 Pac. 306, 80 Am. St. 918. There is a suggestion in the brief of the respondent that the appellant ratified the unlawful acts of its president. This position is not sound. The appellant never acted on the matter at all. Corporations are managed through boards of trustees. One of the trustees was not aware of the existence of the notes until after the last interest payment had been made. The president and secretary were powerless to ratify their own wrongful acts. The same authority is required to ratify a contract as to make it in the first instance. Porter v. Winona & D. Grain Co., supra; Lyndon Mill Co. v. Lyndon Literary & Biblical Inst., 63 Vt. 581, 22 Atl. 575, 25 Am. St. 783. The respondent’s authorities go no further than to hold that, where a corporation has received a benefit through a transaction of its managing officer in the regular course of business with an innocent party, the corporation will be held estopped to claim that the officer exceeded his authority. This rule does not aid the respondent. The appellant received no benefit from the transaction and the respondent was not innocent. The judgment is reversed, with directions to enter a judgment for the appellant. Mount, C. J., Crow, Chadwick, and Parker, JJ., concur.

The opinion of the court was delivered by White, J. The complaint in this action, omitting formal parts, is as follows: 1. “That the plaintiff is the lessee and entitled to the possession of that second and upper story of that certain brick building located on the southwest corner of 2d avenue and Union streets, in the city of Seattle, and state of Washington, county of King, known as ‘Bigelow Block/ and is entitled to collect all rents due and owing and payable from the tenants of said upper story of said building after May 1st, A. D. 1900. 2. That the defendant, H. P. Halverson, has occupied room numbered 7 in said second and upper story of said block under a verbal lease from month to month made by I. H. Bigelow, the owner of said building, and that said lease began and ended on the 1st day of each and every calendar month. 3. That on the 9th day of April, A. D. 1900, and more than 20 days prior to the expiration of the monthly term of said lease for the month ending May 1st, A. D. 1900, said I. H. Bigelow, desiring to terminate said monthly lease of this defendant, served notice, by delivering a copy thereof personally to this defendant, requiring him, this defendant, to quit the said premises at the expiration of said month ending May 1st, 1900. 4. That said defendant continues in possession of said room Ho. 7 in person continually, since May 1st, A. D. 1900, Avithout the permission of this plaintiff, and by reason whereof this plaintiff has sustained damages in the sum of $50,” etc. To this complaint a demurrer was interposed, upon the ground that it did not state facts sufficient to constitute a cause of action, which demurrer was overruled, and this is assigned as error. No motion to make the complaint more definite or certain was made. The appellant contends that the allegation that plaintiff “is the lessee and entitled to the possession of that second and upper story * * * and is entitled to collect all rents due and owing and payable from tenants of said upper story, after May 1st, A. D. 1900,” is a conclusion of law that would result from certain facts, such that on a certain date the plaintiff, by virtue of an agreement, had become the tenant of said Bigelow, and whatever her rights may have been, and also that by virtue thereof she was entitled to all the rents, and that there was an attornment by the tenant; but to allege merely that she was the lessee, not stating when or how it happened, or what was done, is not complying with the statute, which requires “the complaint must set forth the facts on which he seeks to recover.” Even if we conceded, for the purpose of this decision, that the allegation is a conclusion of law, yet it is not such an objection as can be urged upon demurrer. “Thus, if instead of alleging the issuable facts the pleader should state the evidence of such facts, or even a portion only thereof, unless the omission was so extensive that no cause of action at all was indicated, or if he should aver conclusions of law, in place of fact, the resulting insufficiency and imperfection would pertain -to the form rather than to the substance,' and the mode of correction would be by a motion, and not by a demurrer.” Pomeroy, Code Remedies, § 549. This rule was adopted by the supreme court of the territory of Washington in the case of Chambers v. Hoover, 3 Wash. T. 107 (13 Pac. 466), and re-affirmed by this court in Isaacs v. Holland, 4 Wash. 54 (29 Pac. 976). The true doctrine is that every reasonable intendment and presump tion is to' be made in favor of tbe pleading, and if substantial facts which constitute a cause of action are stated in the complaint, or can be inferred by reasonable intendment from the matters which are set forth, although the allegations of these facts are conclusions of law, or otherwise imperfect, incomplete, and defective, such insufficiency pertaining to the form rather than to the substance, the proper mode of correction- is not hy demurrer nor by excluding evidence at the trial, but by a motion before the trial to make the averments more definite and certain by amendment. Pomeroy, Code Remedies, §§ 547, 549. This court has held that an allegation that the plaintiffs are “owners” of the .premises is sufficient, without deraigning their title. Shannon v. Grindstaff, 11 Wash. 536 (40 Pac. 123). Wp think the allegation that the plaintiff is “lessee” falls within the same rule. Prom the context in paragraph two of the complaint, it is manifest that the allegation “that said lease began and ended on the first day of each and every calendar month” is equivalent to alleging that said tenancy began, etc. This paragraph alleges that defendant occupied room No. 7 under a verbal lease from month to month. This is an allegation of a monthly tenancy. It is claimed, however, that no such tenancy could begin and end on the first day of every calendar month. The allegation of this paragraph, construed under the rule hereinbefore stated, amounts to this: That appellant was a tenant from month to month; that his tenancy began on the first of each calendar month. The allegation as to when it ended is therefore mere surplusage; for, under the authorities cited by the appellant, and under the law.as we understand it to be, if the monthly term began on the- first day of the month, it would end on the last. The allegation of the third paragraph of the complaint is to the effect that on the 9th of April, 1900, prior to the expiration of the monthly term, respondent served on the appellant notice to quit said premises at the expiration of said month ending May 1, 1900. There was no tenancy ending May 1, 1900. The monthly tenancy ended on April 30th. The notice was served on April 9, 1900. As we have said, the proper construction of the second paragraph of the complaint is that the tenancy began on the first of each calendar month. The said month referred to in paragraph three means the calendar month of April, and under it the notice served was admissible in evidence, and the words “ending May 1, 1900,” could not have misled the appellant as to the meaning of the notice. The notice actually served was as follows: “Notice is hereby given and extended that you are hereby required to quit, surrender up, and deliver to the undersigned, the possession and occupancy of those certain premises described as follows, to wit: — Photographic rooms No. seven (7) on second fioor of Bigelow Block, corner of 2d avenue and Union street, in the city of Seattle, state of Washington, which you now hold of me; and to remove therefrom and vacate said premises on or before the first day of May, A. D. 1900, pursuant to the statute in such case made and provided; and you are further notified that on said first day of May, A. I).-1900, the relation of landlord and tenant heretofore existing between the undersigned and yourself will thereupon cease and terminate. You az’e further notified' hereby that, in case of your failure so' to do, you will be guilty of unlawful detainer, and liable to an action for such unlawful detainer.” The tenant, under his contract of lease, had the right to occupy the premises until 12 o’clock midnight of April 30th. The mere fact that he was given by the notice all of the first day of May to remove we do' not think vitiated the notice, or amounted to a new contract of letting for another month or for any period of time. He was entitled, under the law, to more than twenty days' notice to quit before the expiration of his monthly tenancy. This he received, and, in addition, his landlord gave him all of the first day of the ensuing month to remove. This day, as the evidence shows, corresponded to the day upon which the rent was payable; the receipts showing that the rent was paid on the first day of the month in advance. The statute does not require ‘the notice to specify the time at which the tenant must remove. It simply requires it to be served more than twenty days before the expiration of the tenancy. The notice in this case required the tenant to vacate on or before the 1st day of May and was a sufficient notice to vacate on April 30th, the day his tenancy expired. We are aware that it has been held: “If a particular day is named in the notice it must be the day of, or corresponding to, the conclusion of the tenancy, and not to its commencement.” Taylor, Landlord & Tenant (8th ed.), § 477. But it has also been held that where there was a letting from month to month, and the tenancy began on the 18th of December, a notice to quit on the 17th of January was not sufficient; that the notice should have been to quit on the 18th of January. Waters v. Young, 11 R. I. 1 (23 Am. Rep. 409); Steffens v. Earl, 40 N. J. Law, 128 (29 Am. Rep. 214). We think that all the tenant was entitled to was more than twenty days’ notice before the 30th day of April, that his tenancy would end, and that giving an additional day, at the tenant’s option, as was the effect of this notice, does not render it invalid. The appellant calls attention to two¡ leading questions, one of which was answered over his objection. Allowing or refusing leading questions is not generally a ground for reversal, unless there appears to be a clear abuse of discretion. We are not prepared to say there was such an abuse as to' prejudice the appellant in this instance. The appellant requested instructions as to nominal damages, and error is assigned for refusal to instruct on this point. The jury found nominal damages, and therefore the appellant was not prejudiced by the refusal of the court to instruct on that subject. The court instructed the jury, in substance, that, if they found the appellant was not entitled to the possession of the premises, they should find for the plaintiff “such sum, not exceeding fifty dollars, as you shall find from the evidence constitutes the damages, if any, sustained by the plaintiff by reason of the defendant’s failure to surrender the premises at the time indicated in the notice.” The court did not tell the jury, as assigned as error, that “they could find such damages as they might see fit.” The record does not show this assigned error, and we will not further consider it. There was evidence tending to show that from the first day of May, 1900, the plaintiff was the lessee of the owner of the premises in question, and in Capital Brewing Co. v. Crosbie, 22 Wash. 269 (60 Pac. 652), we held that, where a tenant refuses to give up possession at the expiration of his term, an action may be maintained against him by a lessee whose term immediately follows. The seventh assigned error is, therefore, not well founded. We will consider together the fourth and fifth errors assigned, which are as follows: Permitting hearsay evidence to be introduced upon the trial, and refusing to strike out part of Bigelow’s testimony. The appellant in his answer denied that notice to quit was served upon him. Bigelow, the owner of the property, in his testimony in chief, testified positively on- behalf of respondent that he delivered a copy of the notice to quit personally to appellant. This was all of the testimony in chief on that point offered by respondent. The appellant flatly contradicted Bigelow, and testified that no notice was served upon him by Bigelow, but that his (appellant’s) wife gave him the notice on the 9th of April. The wife testified that on the 9th day of April, Bigelow came into their reception room and handed the notice to her, and she afterwards gave it to her husband. Under the undisputed facts in this case, the service, under the statute, could be made only by delivering a copy personally to the appellant. Bal. Code, § 5529. On rebuttal, Bigelow, over the objection of appellant, to which proper exceptions were saved, was allowed to testify that he consulted his attorney, Mr. Howell, and ascertained the attorney’s opinion as to the proper method of serving the notice. The following question was then ashed, and answered by the witness: “Q. From my (Howell’s) advice what did you do when you went to serve this notice — what did you understand that you must do ? I will put that a little different: What did you understand that the statute of the state of Washington required you to- do in order to make a service ? A. I understood, according to your instruction, and T supposed you knew, that I was to serve personally any notice of the kind. I had others to serve, and I was to serve personally on the parties themselves. You also instructed me that if they did not take it from my hand, and I would place it on their desk, I would serve it as effectively, and consequently, when I went in, I gave Mr. Halverson that notice. I was passing through there, and if he had not been in the room I could have seen him in the other room. There was a large door opening in there. There was no reason why I should not give it to him.” The fifth assigned error is because the court did not strike out all of this answer after the word “consequently.” The jury were entitled to know all of the circumstances attending the service of the notice, but conversations with, and advice of, attorneys prior to such service are not attending circumstances. Most of this testimony was hearsay evidence, and its tendency was to bolster up Bigelow’s evidence. “One of the most important of the rules excluding certain classes of testimony is that which rejects hearsay evidence. By this is meant that kind of evidence which does not derive its value solely from the credit to be attached to the witness himself, but rests also in part on the veracity and competency of some other person from whom the witness may have received his information. * * * The dangers of admitting hearsay evidence are' especially obvious when issues of fact are to be determined by jurors who are not trained to discriminate between different grades of testimony; between those statements -which in a legal sense are only gossip and others which are tested by cross-fexamination and sanctioned by the solemnity of an oath.” 2 Jones, Evidence, § 299. Part of the testimony which the' appellant moved to strike was the conclusion of the witness, and as to that the motion should have been granted. But, if this were the only error, we would not consider it of sufficient importance to reverse the judgment. The other testimony of Bigelow, as to the advice of his attorney and what he vmderstood from his conversation with him was clearly •inadmissible, and from its nature must have been prejudicial, and it should not have been admitted over appellant’s objection. For that reason, the judgment of the court below is reversed and the cause is remanded for a new trial; appellant to recover his costs of this appeal. Dunbar, C. J., and Reavis, Anders and Fullerton, JJ., concur.

The opinion of the court was delivered by Anders, C. J. — From August, 1889, until March 13, 1890, appellant and W. T. Eelleher were partners doing business as retail dry goods merchants in the city of Seattle, in this state, under the firm name and style of W. T. Eelleher & Co. On February 28,1890, the firm, being indebted, settled with their creditors by paying half of their indebtedness in cash, and giving their firm notes for the balance to Schweitzer & Go., of San Francisco, who represented all of their creditors. There were four of these notes, each for the sum of $3,133.80, and amounting in the aggregate to $12,534.20. On March 13, 1890, the firm of Eelleher & Co. was dissolved by mutual consent. By the terms of the agreement of dissolution Ephraim retired from the firm and Eelleher was to retain all the stock of goods then on hand, and all other firm assets, and promised and agreed to pay all of the co-partnership notes and debts, and to save Ephraim harmless from all liability on account thereof. It was also agreed between them that Ephraim should retain the same control of the business that he had before the dissolution until the notes and debts of the firm for which he was liable should be paid; but it appears from the evidence that that part of the agreement was disregarded> and that, in fact, the business was thereafter conducted exclusively by Eelleher. Notice of the dissolution was given by publication in the newspapers and personally to those with whom the firm had formerly dealt, but the firm name of Eelleher & Co. was retained by Eelleher after the dissolution. Ephraim remained in Seattle after the dissolution a greater part of the time, until about July 20 or 25, 1890, at which time he concluded to go to his home in California to remain. Before leaving, however, he entered into an agreement with Eelleher whereby the latter was to give him a chattel mortgage upon the entire stock of goods then in his store in Seattle, and upon the fixtures and all his book accounts and notes, to indemnify him against his liabilities upon the notes to Schweitzer & Co., then amounting to $9,401.40 (one of the notes having been paid), and upon an indebtedness of Kelleher of $465 to Newhall, Sons & Co., and of $300 to the Merced Woolen Mill Company, for which he had agreed to be responsible. The mortgage was executed, according to this agreement, by Kelleher and wife, on July 28, 1890, and delivered to Ephraim’s agent, who caused it to be recorded on August 11, 1890. A day or two subsequent to the recording of the mortgage, the respondents, Pleischner, Mayer & Co. and Newstadter Bros., respectively, commenced actions against Kelleher in the superior court of King county, in which actions writs of attachment were issued and placed in the hands of respondent, McGraw, who was sheriff of King county, by virtue of which he levied upon and took possession of the property and goods belonging to said Kelleher, and covered by the said mortgage. Appellant Ephraim thereupon commenced an action to foreclose his chattel mortgage, and asked to have the same declared to be a lien prior to the attachment liens of the defendants, and prayed for the appointment of a receiver to take charge of and sell the property under the direction of the court. A receiver was accordingly appointed, who sold the property, and now holds the proceeds, subject to the order of the court. As a defense to the action the attaching defendants alleged in their answer that the mortgage was given without consideration, and was executed and delivered by Kelleher for the purpose of hindering, delaying and defrauding his creditors and the said defendants, and that the same was fraudulent and void as to the defendants and the creditors of Kelleher. After the institution of the foreclosure proceedings a number of other creditors of Kelleher commenced actions against him, in which writs of attachment were issued and levied on the same goods, for the recovery of their respective claims and demands, several of whom, by leave of the court, intervened in the foreclosure suit, and likewise contested the validity of the mortgage. On September 23, 1890, and before judgment was rendered against him in any of these actions, Kelleher made a general assignment of all his property for the benefit of his creditors, under the act of March 6,1890. An assignee was appointed, who duly qualified, and thereafter intervened in the foreclosure suit, and asked to have the mortgage declared fraudulent and void as to the creditors of Kelleher. After the making of the assignment a motion was filed by plaintiff to dissolve the attachments, which motion was overruled, and the court proceeded to try the case upon the issues thus raised. Subsequent to the commencment of his action to foreclose the mortgage, the plaintiff, Ephraim, paid or secured the payment of the Schweitzer & Co. notes, described in the mortgage. Upon the trial the court gave judgment in favor of Ephraim and against Kelleher for the sum of $10,916 and costs, and in favor of the assignee and intervenors, and against the plaintiff for their costs. As a conclusion of law from the facts found, the court stated that, as to the assignee and creditors of Kelleher, the mortgage sued on was fraudulent and void, and that the proceeds of the property in the hands of the receiver should be delivered to the assignee as assets under the assignment. The plaintiff excepted to all the conclusions of law stated by the court, except that which stated that the plaintiff was entitled to judgment against the defendant, and moved the court to so change the conclusions of law as to state that the mortgage should be foreclosed as against all of the defendants. The court denied the motion and the plaintiff duly excepted. Judgment was thereupon entered in accordance with the conclusions of law stated by the court, and the plaintiff appealed to this court. Following the description of the property the mortgage recites, in substance, that it is given to secure, indemnify and hold harmless the mortgagee from all liability, loss or damage accruing, directly or indirectly, by reason of the failure or refusal of the said W. T. Kelleher to pay off and satisfy the whole or any part of the amount due or to become due upon all or any of the aforesaid promissory notes, or upon all or any of the aforesaid accounts, or upon all or any of the claims of the creditors of the original firm of Kelleher & Co., for whose benefit the aforesaid promissory notes were executed. It also sets forth the fact that the parties thereto had been partners; that the firm was dissolved by Kelleher purchasing the interest of Ephraim, the giving of the notes to Schweitzer & Co. for the benefit of their creditors, and the agreement of Kelleher to pay the firm liabilities. The mortgage also contains the following provisions: ■“ And it is agreed, if th e mortgagors shall fail to cause said promissory notes, and each of them, to he duly paid off, satisfied and canceled, or shall fail or refuse to cause the aforesaid account of Schweitzer & Company to be paid off and satisfied, or shall fail or refuse to cause the aforesaid account in favor of the Merced Wool Mill Company to be paid off and satisfied, or if the aforesaid stock, goods, wares, merchandise and fixtures, orany part thereof shall be levied upon by any writ of attachment, execution or other proceedings, or shall come into the hands of any sheriff, assignee, receiver, administrator, executor or other officer, or if all or any one of the aforesaid promissory notes shall fall due and remain unpaid, then, and in that event, the mortgagee may immediately take possession of said property, ■goods, wares, merchandise, fixtures, book accounts and promissory notes, using all force necessary so to do, and may immediately proceed to sell the same in the manner provided by law, and from the proceeds may pay the whole amount due or thereafter to become due upon each and all of the aforesaid promissory notes, and upon the account of the aforesaid Newhall, Sons & Company; and upon account of the said Merced Woolen Mill Company; and also from the proceeds aforesaid, pay and satisfy the reasonable costs and expenses of selling said stock, appropriating the proceeds thereof to the purposes aforesaid, and for the payment of reasonable and proper attorney’s fees, in the sum of ten per cent, of the amount of said stock so taken and sold. And further, that in the event that the mortgagee shall at any time deem himself to be insecure by reason of the failure of said W. T. Kelleher to pay and satisfy the aforesaid notes and accounts, or from any other cause, then thesaid Ephraim shall have the right to take possession of said property and sell the same in the same manner, for the same purposes, and with the same power as hereinbefore granted.” No provision is made in the instrument for selling the mortgaged goods by the mortgagor, but the proof shows that at the timethe mortgage was given, it was understood and agreed between the parties that Kelleher should have the right to sell the goods in the usual course of trade, and use part of the proceeds to pay for such new goods as might be required to keep up the stock, and to defray the expenses of conductingthe business, and apply the balance in discharge of the obligation set forth in the mortgage. The controlling question in this case is whether the court below erred in adjudging the mortgage in question fraudulent and void as to the assignee and the creditors of the mortgagor. The instrument is in the usual form of indemnity mortgages. It shows no infirmities upon its face and was executed in accordance with the provisions of the statute and apparently for a legitimate purpose; and if it is to be declared invalid it must be either by reason of the parol agreement between the parties at the time of its execution whereby the mortgagor was permitted to appropriate part of the proceeds of the property for the purposes of replenishing the stock and paying the expenses of carrying on the business, or because the mortgage was given and received for the purpose of enabling the mortgagor to defraud his other creditors. The doctrine that fraud may be deduced, as a legal conclusion, from the mere retention by the mortgagor of the property mortgaged, can have no application under our law of chattel mortgages, for the reason that by our statute the mortgagor is the owner of the property, and, unless he stipulates to the contrary, is entitled to the possession even after default. The mortgage is a mere lien by virtue of which no title passes, or can pass, to the mortgagee, except by foreclosure and sale, in the manner provided by law. This is the plain import of the provisions of chapter 141, and §§ 618, 619, Code of 1881 (Gen. Stat., ch. 1, 2 and 3, title 19) relating to mortgages on personal property. And the mortgagor in this case having a right to the possession of the mortgaged goods, no presumption of fraud can arise from the fact that he remained in possession until the levy of the writs of attachment. This proposition does not seem to be disputed by the respondents. Nor is it claimed that the mortgage in controversy would have been rendered invalid by an agreement or provision for the sale of the goods by the mortgagor in the ordinary course of trade, provided the proceeds were to be applied exclusively to the payment of the mortgage debt. Such a mortgage was held valid in the case of Langert v. Brown, 3 Wash. T. 102, and we feel confident that no court in such a case would now hold the contrary doctrine, unless controlled by statute or bound by prior decisions. But the respondents contend that the fact that the mortgagee agreed to allow the mortgagor to use part of the proceeds of the sales to purchase additions to the stock and- to pay the running expenses of the business,invalidated the mortgage, as to the creditors of Kelleher. And in support of their contention they cite, among others, the case of Wineburgh v. Schaer, 2 Wash. T. 328, and that of Byrd v. Forbes, 3 Wash. T. 318. In the former case the question of the validity of a chattel mortgage was raised upon a demurrer to the answer which alleged that the mortgagor retained possession of the goods and sold and disposed of the same in the usual course of business and applied the proceeds to his own use and benefit with the knowledge and consent of the mortgagee; and the court held upon the facts as admitted by the demurrer, that the mortgage was void as to the creditors of the mortgagor. But in so holding the court did not attempt to express its own view as to the rule that should govern in determining the validity of such instruments, but followed the binding decision of the supreme court of the United States in the case of Robinson v. Elliott, 22 Wall. 513. In delivering the ojfinion of the court Turnee, J., said: “If we were at liberty to do so, it would be profitable to take up these cases (referred to by counsel) and attempt to extract from them the rule upon the subject that seems to be most consonant with sound reason. We are stopped on the threshold of the investigation, however, by an authority of such weight that it would have great force with the court of any state where the question was still an open one; and that, as to this court, is binding and authoritative. We refer to the decision of the supreme court of the United States, in the case of Robinson v. Elliott, reported in 22 Wall, p. 513. It was decided in that case, by the unanimous voice of the full bench, that a chattel mortgage upon a stock of goods in trade, which permits the mortgagor to remain in possession of the property and its disposition by sale in due course of trade, at his discretion, until the maturity of the debt purporting to be secured by it, is fraudulent and void as to other creditors, without reference to the bona fides of the parties. We gather from the opinion, however, that the court strongly doubted if the mortgage would be invalid, in case the money derived from the sale of the mortgaged property was applied, and was understood to be applied, to the extinction, in whole or in part, of the mortgage debt. This authority must govern us in the decision of this case.” But that case can hardly be regarded as an authority in support of the contention of respondents, for the reason that in the case at bar it does not appear that the mortgagor was authorized by the mortgagee to apply the proceeds of the property sold to his own use and benefit. But the case of Byrd v. Forbes, to some extent at least, would seem to support the claim of the respondents, and was probably relied on as authority for the conclusion reached by the learned judge of the superior court in this case. In that case it was stipulated, among other things, in the mortgage, that “until default be made in the payment of any of the said promissory notes, and so long as mortgagor shall keep up his stock of goods so as to be good and ample security for the payment of the said principle and interest of the said promissory notes, that the said mortgagor may and shall have the right to retain possession of the mortgaged property, and sell and dispose of the same in the usual course of his retail business and trade, or in job lots, for the sole use and benefit of mortgagee, until the said promissory notes are fully paid, and said mortgage debt is fully satisfied.” And the court held that the mortgage was void for indefiniteness and as being a fraud on creditors of the mortgagor. It was observed by Chief Justice Greene, who delivered the opinion of the court, that the mortgage fell fairly within the principle underlying the case of Robinson v. Elliott, 22 Wall. 513. But it would seem that the decision of the court, in its application of the doctrine of constructive fraud, really went beyond the underlying principle in the case of Robinson v. Elliott, for in the latter case Mr. Justice Davis, speaking for the court, used this language: “But there are features engrafted on this mortgage which are not only to the prejudice of creditors, but which show that other considerations than the security of the mortgagees, or their accommodation even, entered into the contract Both the possession and right of disposition remain with the mortgagors. They are to deal with the property as their own, sell it at retail, and use the money thus obtained to replenish their stock. There is no covenant to account with the mortgagees, nor any recognition that the property is sold for their benefit.” It may be reasonably inferred from the language above quoted that the court would have sustained the mortgage then before it had the features spoken of not been in-grafted on it. And we do not feel certain that the court would have held the mortgage void in the case of Byrd v. Forbes, on the authority of Robinson v. Elliott, if it had had before it the late case of Etheridge v. Sperry, 139 U. S. 266, in which that case, among others, is reviewed and its meaning explained. We therefore do not consider the case of Byrd v. Forbes as absolutely settling the law of this state upon the question, and we certainly would not be disposed to extend the doctrine there laid down, even if we should apply it to a like state of facts. Moreover, we venture the suggestion that the mortgage under consideration in that case might well have been interpreted as showing an honest intent on the part of the parties to it; and, if that be true, it could hardly be said to be void, as matter of law. When two constructions can be given to a written instrument, one making it consistent and the other inconsistent with honesty and fairness, the former should be adopted. It was said by Campbell, J., in Gay v. Bidwell, 7 Mich. 519, to be a cardinal rule never to infer a dishonest meaning if an honest one is possible and consistent with the whole tenor of the instrument. This is a sound and just rule of construction, and furnishes a safe test in determining the validity of chattel mortgages. The tendency of the latter decisions appears to be against declaring these instruments fraudulent in law, unless they are necessarily so upon their face, and towards leaving the question of fraud open to investigation as a matter of fact; and this would seem to be not only consonant with reason, but in accord with sound policy. In New v. Sailors, 114 Ind. 407 (5 Am. St. Rep. 632), the mortgagor was authorized by the terms of the mortgage to retain the possession of the property mortgaged, with authority to sell at retail in the ordinary course of trade. There was no agreement that the proceeds should be applied to the liquidation of the mortgage debt, nor anything to show an agreement or understanding that the mortgagor might use the proceeds for his own benefit, and it was held that it could not be judicially inferred that the mortgage was made with fraudulent intent. See also Fisher v. Syfers, 109 Ind. 514; McFadden v. Fritz, 90 Ind. 590; Morris v. Stern, 80 Ind. 227. And it may be here remarked that these cases hold the contrary doctrine to that supposed to obtain in Indiana at the time the decision in the case of Robinson v. Elliott was rendered. And as the federal courts follow the decisions of the highest courts of the several states in which the actions arise in determining the validity of chattel mortgages, if the same, case were again before the supreme court of the United States, it would in all probability be decided in accordance with the doctrine of the Indiana decisions to which we have referred. See Etheridge v. Sperry, supra. In Kansas, mortgages with stipulations like the one before us have, so far as we are aware, been universally sustained if made in good faith. In Whitson v. Griffis, 39 Kan. 211 (7 Am. St. Rep. 546), a case quite parallel with this, a chattel mortgage on a stock of goods containing a provision that motrgagor might retain possession and sell the property in the course of trade, and account for the proceeds, and receive out of such proceeds the expenses of operating the business, together with compensation, and the means of subsistence of the family of the mortgagor during the continuance of the business, was upheld and sustained by the court. And the earlier decisions of that court are to the same effect. See Frankhouser v. Ellett, 22 Kan. 127 (31 Am. Rep. 171); Howard v. Rohlfing, 36 Kan. 357. In Michigan, as in Indiana, the question of fraudulent intent is declared by statute to be a question of fact for the determination of the jury. But the decisions of the supreme court of that state discuss the question quite as much upon principle as with reference to the statute, and we infer from the adjudged cases that the rulings of the court would have been the same had no statute been enacted upon the subject. In the leading case of Oliver v. Eaton, 7 Mich. 108, which was very similar in point of fact to the one now before us, the question of fraudulent chattel mortgages is very exhaustively discussed, and the law applicable to the subject very clearly and forcibly stated. In speaking of what instruments are void upon their face, and why they are so, the court said: “ The law, wherean in strument contains illegal provisions, and such as are not reconcilable, on any possible hypothesis, with an honest or legal intent, declares it void upon its face, because no evidence could change its character. The cases in which this absolute and unchangeable presumption arises are not numerous. There are other cases in which, upon the face of the instrument, a statutory presumption arises which is only prima facie evidence of fraud. And there are still more cases in which the whole illegality charged must be made out by extrinsic evidence. In both of the classes last named, the jury must determine all the facts.” And in the same case the court makes this pertinent observation: “By leaving each, case to the jury, each instrument is made to stand upon its own actual merits; which is much safer in questions of fraud, whose manifestations are infinitely various, than the adoption of fixed rules, which must fail to meet numerous cases.” See also Gay v. Bidwell, supra, and People v. Bristol, 35 Mich. 28. In Iowa the same doctrine has been maintained by an unbroken line of decisions for more than a quarter of a century. Terbert v. Hayden, 11 Iowa, 435; Hughes v. Cory, 20 Iowa, 399; Meyer v. Gage, 65 Iowa, 606; Meyer v. Evans, 66 Iowa, 179. In the latter case, by the terms of the instrument the mortgagor reserved the right to sell the stock of goods at retail, in the ordinary course of trade; and there was a parol understanding that the mortgagor should keep up the stock, and that the expenses of carrying on the business should be paid out of the proceeds of the sales; and there was no provision in the mortgage nor any parol agreement that any portion of the proceeds of the sales should be applied on the mortgage debt, but by the terms of the mortgage the mortgagee had the right at any time to take possession of the property and sell the same for the satisfaction of the debt. And it was held that the validity of the mortgage depended upon the good faith of the parties to the transaction. In Etheridge v. Sperry, supra, the Iowa decisions above cited are referred to and the doctrine held by them approved. In that case the question to be determined was whether as matter of law a mortgage given by a merchant on his stock of goods to secure debts not yet due, which upon its face had no imperfections, contained no reservations for the benefit of the mortgagor, and was apparently only for the security of the mortgagee, and gave him full power to take possession on default in payment, or on any misconduct of the mortgagor, or whenever he pleased, was invalidated by the fact of a parol understanding at the time of its execution that the mortgagor might use the proceeds of his sales to support himself, and to keep up the stock by purchases, applying all of the surplus to the mortgage debt, or whether such an agreement was simply to be taken into consideration, together with the other circumstances as bearing upon the question of good faith of the parties. The supreme court of Iowa held the mortgage valid, and an appeal was prosecuted to the supreme court of the United States. The plaintiff in error relied on the cases of Bank of Leavenworth v. Hunt, 11 Wall. 391; Robinson v. Elliott, 22 Wall. 513; and Means v. Dowd, 128 U. S. 273 — all cited by the respondents in this case — as sustaining his contention that the instruments were invalid in law. And in reference to those cases Mr. Justice Brewer, in delivering the opinion of the court, said: “While there are some points of similarity between each of those cases and this, and while there are observations in, the opinions filed in them pertinent and correct with reference to the special facts which, if disconnected from those facts and applied here, might seem authoritative, yet there are clear and sufficient reasons why neither the decisions nor the opinions should control this case.” After referring to the facts appearing in each of those cases, and fully explaining the intent and meaning of the-case of Robinson v. Elliott, the court proceeded to say: “In neither of those cases is it affirmed that a chattel mortgage on a stock of goods is necessarily invalidated by the fact that either in the mortgage, or by parol agreement between the parties, the mortgagor is to retain possession, with the right to sell the goods at retail. On the contrary,it is clearly recognized in them that such an instrument is valid, notwithstanding these stipulations, if it appears that the sales were to be for the benefit of the mortgagee.' What was meant was, that such an instrument should not be used to enable the mortgagor to continue in business as theretofore, with full control of the property and business, and appropriating to himself the benefits thereof, and all the while holding the instrument as a shield against the attacks of unsecured creditors.” In determining the question before it the court accepted the law of Iowa upon the subject, as settled by the decisions of the supreme court of that state as decisive, and accordingly held themortgages in controversy valid. The concluding portion of the opinion is devoted to a discussion of the question upon general principles, without special reference to local decisions; and as it is the latest expression of the views of the court upon the subject to which our attention has been directed, we feel fully warranted in quoting it at length. It is as follows: “Indeed, if this were an open question, we could not be blind to the fact that the tendency of this commercial age is towards increased facilities in the transfer of property, and to uphold such transfers so far as they are made in good faith; and it is at least worthy of thought, whether the rulings ma^e by the supreme court of Iowa do not tend to make chattel mortgages more valuable for commercial purposes without endangering the rights of unsecured creditors. The law now generally requires a record of all such instruments, and that, like the recording of a real estate-mortgage, gives notice to all parties interested of the fact and extent of incumbrances. Why should a transaction like this be condemned, if made in good faith and to secure an honest debt? The owner of a stock of goods may make an absolute sale of them to his creditor in payment of a debt. If an absolute, why not a conditional sale, with such conditions as he and his creditor may agree upon?' As between'the parties no court would question this right, or refuse to enforce the conditions. The interests of the general public are not prejudiced by any such transaction between debtor and creditor. Indeed, they are rather promoted by any arrangement underwhichthe mortgagor can continue in business, for in ninety-nine cases out of a hundred the taking of possession by a creditor results in closing the business, and turningthe debtor out of employment. The only parties who can claim to be injuriously affected are unsecured creditors. But they are notified by the record of the exact relations between the mortgagor and mortgagee; and surely subsequent creditors have no right to complain if they deal with the mortgagor with full knowledge of such relations. Existing creditors may of course challenge the good faith of the transaction, but if they cannot disturb an absolute sale when made in good faith, why should they be permitted to challenge a conditional sale if made in like good faith ? The fact that fraudulent relations are possible, is hardly a sufficient reason for denouncing transactions which are not fraudulent. So, if the question were open, or a new one, unaffected by any settled law of the state, we incline to the opinion that the question is not one of law, so much as it is one of fact and good faith, and that the decision of the supreme court of Iowa rests on sound principles.” While the decisions of the courts of the various states on this subject are irreconcilably in conflict, it seems to us that the rule adopted in the foregoing decisions not only rests on sound principles, butisdictated by wisdom andjustice. It is claimed, however, by the learned counsel for respondents, that this mortgage is fraudulent in fact, if not in law. But we have carefully examined all the testimony in the case, and we are not convinced by the evidence that appellant was actuated in accepting this mortgage by any other motive than a desire to secure indemnity from liability upon the debts therein set forth. From the evidence before us there can be no doubt of appellant’s liability upon the notes and accounts mentioned in the mortgage, or that Kelleher, in consideration of appellant’s interest in the firm of Kelleher & Company, at the time of its dissolution promised and agreed to pay thenotes and to indemnify appellant against all liability thereon and all loss or damage resulting therefrom. And the fact that Kelleher was indebted to others at the time the mortgage was given did not render the transaction fraudulent. There is nothing in our statutes preventing a debtor, even in failing circumstances, from preferring one creditor over another in paying his debts. Nor is it illegal for one creditor to take security from his debtor, though others may thereby be prevented from collecting their claims, if the transaction is entered into solely for the purpose of security, and not for the purpose of aiding the debtor to defraud his other creditors. While conceding that the assignee of Kelleher was properly permitted by the court to intervene in the foreclosure proceeding, it is contended by appellant that the court erred in permitting certain attaching creditors to so intervene, and that the court further erred in refusing to strike out the complaints of the intervenors after the assignment, for the alleged reason that the attachments were dissolved by force of the assignment law of March 6,1890, and that a mere creditor at large had no legal right to intervene for the purpose of contesting the validity of the mortgage. But if we concede that the attachments were discharged by Kelleher’s assignment for the benefit of his creditors, after levy, but before judgment, and that, generally, a creditor at large cannot intervene in such an action, we are nevertheless of the opinion that these creditors were authorized by § 1997, Code 1881, to contest the right of appellant to foreclose the mortgage, which was all they undertook to do. They asked no affirmative relief whatever, but simply that the instrument be declared invalid as to them. From all the facts in this case we are satisfied that this mortgage was valid between the parties when made, and we are not satisfied that it was rendered invalid by any subsequent conduct of the parties. We are, therefore, constrained to conclude that the court erred in holding the instrument void as to respondents. But we think the mortgage should not be declared a lien for the whole amount of the judgment rendered in favor of appellant. According to his own showing he paid the three notes, mentioned in the mortgage, amounting to $9,401.80, by giving his bond for $900 of that sum, and paying or securing the remainder, which is $8,501.40, at the rate of seventy cents on the dollar, including the expenses. The whole sum actually paid on the notes by him, by reason of the default of Kelleher, amounts to' $6,850.98, which, added to the accounts for which he became responsible, makes the aggregate sum of $7,615.98. From this should be deducted the sum of $400, received by him from Kelleher out of the proceeds of the mortgaged goods. This leaves the sum of $7,215.98 as the amount, exclusive of the attorney fee, provided for in the mortgage, and costs, for which the mortgage shoul d be declared a lien. We have included no interest for the reason that we have discovered no evidence showing that any was paid. The judgment of the court below is reversed and the cause remanded, with directions to enter judgment for plaintiff and against defendant, W. T. Kelleher, for said sum of $7,215.98, together with ten per cent, of said sum as attorney’s fees, and for costs, and a decree foreclosing said mortgage lien and applying the proceeds of said mortgaged property to the satisfaction of said judgment and decree. ■Hoyt, Stiles, Scott and Dunbar, JJ., concur.

Donworth, J. Defendant, Pauline Becker, was charged in the superior court of Yakima county with the crime of grand larceny by false representation, the information alleging that the crime was committed as follows: “Pauline Becker, on or about between September 8, 1948 and January 1, 1950, within Yakima County, Washington, then and there being, and with intent to deprive and defraud the State of Washington, by and through its Department of Social Security, and Yakima County, Washington, by and through its County Welfare Department, did then and there knowingly, willfully and feloniously obtain from the State of Washington and Yakima County, Washington, the owner thereof, possession of certain personal property, to-wit: lawful money of the United States of America in excess of $25.00, by color and aid of fraudulent and false representations, by then and there falsely and fraudulently apply [ing] for and receiving old age assistance grants in said amounts from said State of Washington and Yakima County, contrary to the statutes in such case made and provided, and against the peace and dignity of the State of Washington.” Defendant moved the court to quash the information primarily on the ground that the alleged acts did not constitute the crime of grand larceny. The court granted the motion and entered an order quashing the information and dismissing the action. From that order, the state appeals. Respondent’s contention is that the only statutory provision making it unlawful to commit the acts described in the information was the portion of Rem. Rev. Stat. (Sup.), § 9998-20 [P.P.C. § 921-95] (Laws of 1935, chapter 182, § 20, p. 861, relating to old-age assistance) reading as follows: “Any person who by means of a wilfully false statement or representation, or by impersonation, or other fraudulent device, obtains, or attempts to obtain, or aids or abets any person to obtain: “ (a) Assistance to which he is not entitled; . . . “ . . . shall be guilty of a misdemeanor.” Hence, it is argued that respondent cannot be charged with the crime of grand larceny because the legislature has declared the acts charged in the information to constitute a misdemeanor. Appellant’s contention is that the senior citizens grants act (Laws of 1941, chapter 1, p. 3, Rem. Supp. 1941, § 9998-34 et seq.) repealed Rem. Rev. Stat. (Sup.), § 9998-20, so that in 1948 and 1949, when respondent’s alleged fraudulent procurement of assistance took place, the general larceny statute (Rem. Rev. Stat., § 2601 [P.P.C. § 117-47]) applied. If Rem. Rev. Stat. (Sup.), § 9998-20, was still in force at that time, it operated to create an exception to the general larceny statute, on the principle that, where general and special laws are concurrent, the special law applies to the subject matter contemplated by it to the exclusion of the general law. Hartig v. Seattle, 53 Wash. 432, 102 Pac. 408; Sutherland, Statutory Construction (3d ed.) 488, § 2022. Thus the primary problem presented by this appeal is whether Rem. Rev. Stat. (Sup.), § 9998-20, was repealed by the senior citizens grants act of 1941. A statute may be either expressly or impliedly repealed. Rem. Supp. 1941, § 9998-55, provides “All acts or parts of acts in conflict herewith are hereby repealed.” Such a repealing clause does not constitute a direct repeal and does not have the effect of repealing any part of the prior act which would not be repealed in its absence. Batchelor v. Palmer, 129 Wash. 150, 224 Pac. 685; State v. Cross, 22 Wn. (2d) 402, 156 P. (2d) 416; Sutherland, Statutory Construction (3d ed.) 466, § 2013. There is thus no express repeal of Rem. Rev. Stat. (Sup.), § 9998-20, contained in the 1941 act. In determining whether there has been an implied repeal of that section, the case of Abel v. Diking & Drainage Improvement Dist., 19 Wn. (2d) 356, 142 P. (2d) 1017, is pertinent. In that case, we said: “Repeals by implication are ordinarily not favored in law, and a later act will not operate to repeal an earlier act except in such instances where the later act covers the entire subject matter of the earlier legislation, is complete in itself, and is evidently intended to supersede the prior legislation on the subject, or unless the two acts are so clearly inconsistent with, and repugnant to, each other that they cannot, by a fair and reasonable construction, be reconciled and both given effect.” See, also, Peterson v. King County, 199 Wash. 106, 90 P. (2d) 729; State v. Cross, supra; Rosenthal v. Tacoma, 31 Wn. (2d) 32, 195 P. (2d) 102; Lindsey v. Superior Court, 33 Wn. (2d) 94, 204 P. (2d) 482. Applying this rule to the problem before us, the inquiry is narrowed to whether the 1941 act covers entirely the subject matter of the earlier act. It is not suggested by appellant that there is anything in the 1941 act clearly inconsistent with, and repugnant to, Rem. Rev. Stat. (Sup.), § 9998-20. The 1941 act contains no provision making it a criminal offense to obtain assistance by means of fraudulent representations. It is clear, as contended by appellant, that the senior citizens grants act of 1941 was intended to supplant, to a very substantial extent, the prior old-age assistance legislation. A comparison of the 1941 and 1935 acts demonstrates that the later act provides a new system of old-age assistance and that, as to such matters as eligibility, application for assistance, amounts to be paid, investigation and hearings, the 1935 act was supplanted. However, as pointed out above, there is nothing in the 1941 act relating to penalties for fraudulent procurement of grants. While in the respects above noted the provisions of the 1935 act have been replaced by those of the 1941 act, we are of the opinion that the entire subject matter of the 1935 act has not been supplanted. The 1935 act undertook to prescribe penalties for doing the acts charged in the information; the 1941 act did not. The two acts are not inconsistent in that respect. It does not seem to us reasonable to assume that the people in adopting the senior citizens grants act intended to abolish the penalty imposed by the prior act for obtaining assistance by means of fraudulent conduct. We are of the opinion that Rem. Rev. Stat. (Sup.), § 9998-20, was not impliedly repealed by the senior citizens grants act of 1941, and that it was in effect during the period referred to in the information. If it be considered that one who violates the provisions of Rem. Rev. Stat. (Sup.), § 9998-20, should be subject to punishment for a felony, instead of for a misdemeanor, that is a problem addressed to the legislature or the people acting in their legislative capacity. The courts must construe penal statutes strictly as enacted by legislative authority. State v. Hoffman, 110 Wash. 82, 188 Pac. 25. Because Rem. Rev. Stat. (Sup.), § 9998-20, has not been repealed, either expressly or by implication, and because it is an exception to the general larceny statute (Rem. Rev. Stat., § 2601), there is no statutory basis to support a charge of grand larceny by false representation under the allegations of the information. Since the information charges respondent with the commission of acts which amount to a misdemeanor only, the trial court’s order quashing the information must be, and hereby is, affirmed. Schwellenbach, C. J., Beals, Hill, and Finley, JJ., concur.

Simpson, J. Plaintiff brought this action as administra-trix of the estate of her deceased husband, Joseph D’Amico, for her own benefit and that of the two minor children of herself and Joseph D’Amico. The complaint alleged that the death of D’Amico was caused by the negligence of defendants. The charges of negligence are as follows: (1) that the operator of a truck owned by defendant and, at the time of the accident, being operated by an agent and servant of defendants, on defendants’ business, was so operated at an excessive rate of speed; (2) that the operator of the truck was incompetent and unfit to operate the truck; (3) that the truck, and especially the wheels thereon and the axles connected therewith, was in a defective condition, which defective condition, in connection with the manner of operation, resulted in a wheel becoming disengaged from the truck, rolling into and striking Joseph D’Amico as he was standing near the northwest corner of Airport way and Walker street, in Seattle. The answer contained a general denial of the charges of negligence and then admitted that the death of D’Amico was caused by a wheel from defendants’ truck. As an affirmative defense, defendants alleged that, at the time and place of the accident, D’Amico was engaged in extra-hazardous employment and was in the course of his employment; that defendants were likewise engaged in the course of extrahazardous employment, all within the meaning of the workmen’s compensation act of the .state of Washington. That, by the provisions of the act, plaintiff’s exclusive remedy was against the insurance fund established by law. The reply put in issue the charges made in the affirmative answer. The case tried to the court, sitting with a jury, resulted in a verdict in favor of plaintiff. After denying a motion for a judgment n. o. v. or, in the alternative, for a new trial, the court entered judgment upon the verdict. Defendants have appealed. Their assignments of error are: denial of appellants’ motion for a directed verdict; the denial of appellants’ motion for a judgment n. o. v. or, in the alternative, for a new trial; the entry of judgment on the verdict; the giving of instructions Nos. 7, 11, and 13; and the refusal to give defendants’ proposed instruction No. 2. The material facts relative to the questions present in this case are: Appellants, at the time of the accident, were engaged in extrahazardous work, and the truck owned and operated by them was used in that work. Appellants paid into the accident and medical aid funds the amounts required by the workmen’s compensation act for the months of April and May, 1944. The Malaspino Company, D’Amico’s employer at' the time of the accident, was also engaged in extrahazardous work and had paid into the accident and medical aid funds the amount required up to the date of the accident. D’Amico was, as such employed, engaged in extrahazardous work. The accident happened May 11, 1944, at approximately 12:25 p. m., while D’Amico was standing in the sidewalk area near the northwest corner of Airport way and Walker street in the city of Seattle. Airport way runs north and south, having a width from curb to curb of fifty-eight feet. Walker street extends to the west of Airport way, and is forty-two feet wide. For some time prior to the day of the accident, D’Amico’s employer had been engaged in laying a water main along the parking strip on the west side of Airport way north of Walker street, in which work D’Amico and other workmen were engaged. When the workmen came to Walker street, it became necessary to break the pavement before a ditch could be dug to lay the main. On the day of the accident, D’Amico was engaged in breaking this pavement, and, at the time the noon rest period arrived, the crew was working in the center of Walker street. The power to operate the drill used by D’Amico came from a compressor which was located immediately to the north of Walker street near the west curb on Airport way. The compressor continued to operate during the noon hour and made considerable noise. When work ceased at noon on the day in question, D’Amico and some of his fellow employees went to the parking strip immediately north of Walker street to' eat their lunches. At that time, they were approximately forty or fifty feet away from the place where they had been working. The men customarily brought their lunches, which were eaten near the place where they worked, as it was not practicable for them to go home during the thirty minutes allowed for the noon rest period. The evidence shows that D’Amico consumed about twenty or twenty-five minutes in eating his lunch, after which he walked to the west curb line on Airport way near where the compressor was located, and it was while he was at that place, either standing on or just off the curb, that he was struck by a wheel which became disengaged from appellants’ truck, and received the injury which resulted in his death. The place where he had been standing was about ten or fifteen feet from where he had been working. It is conceded that D’Amico worked by the hour and that his employer had no control over him during the noon rest period. It is also admitted that he worked on eight hour shifts, from eight to twelve, and from twelve-thirty to four-thirty, and that he was not paid for the thirty minutes allowed for lunch. In addition, it is conceded that no money was paid to the Washington compensation fund for the noon hour period. The first question for consideration is whether D’Amico, at the time he was injured, was working in the course of his employment so as to bring him within the provisions of the workmen’s compensation act. If D’Amico was a workman, as that term is defined by our statute, at the time he was injured, his administratrix cannot maintain this action. The applicable statute, Rem. Rev. Stat. (Sup.), § 7675, provides: “Except when otherwise expressly stated, employer means any person, body of persons, corporate or otherwise, and the legal personal representatives of a deceased employer, all while engaged in this state in any extra-hazardous work, by way of trade or business, or who contracts with one or more workmen, the essence of which is the personal labor of such workman or workmen, in extra-hazardous work. “Workman means every person in this state, who is engaged in the employment of any employer coming under this act whether by way of manual labor or otherwise, in the course of his employment: . . . Provided, however, That no action may be brought against any employer or any workman under this act as a third person if at the time of the accident such employer or such workman was in the course of any extra-hazardous employment under this act.” Rem. Supp. 1941, § 7679 [P.P.C. § 705-1]: “Each workman who shall be injured in the course of his employment, or his family or dependents in case of death of the workman, shall receive out of the accident fund compensation in accordance with the following schedule, and, except as in this Act otherwise provided, such payment shall be in lieu of any and all rights of action whatsoever against any person whomsoever.” It is appellants’ contention that, at the time he was injured, D’Amico had not entered upon a wholly separate and distinct undertaking for his own account, but was standing at his place of work waiting for the whistle to blow, and was in the course of his employment during the noon rest period, within the meaning of the workmen’s compensation act. On the other hand, respondent takes the position that D’Amico was not injured while in the course of his employment, in that he was not at his place of work. He was not injured while he was working, but was injured while on his own time, when he was free to go where he pleased, and at a time when his employer had no control over him. Further, that he was not being paid for the half-hour period which included the time of his injury, that no assessment was being paid by his employer to the industrial fund for this half-hour, and that he was not engaged in any act pertaining to his work, but was simply satisfying his own curiosity by observing and watching the working of a piece of machinery (the compressor), with which he had no connection either during the working time or during the rest period. Under our workmen’s compensation act, definite conditions must exist at the time of an injury in order to entitle one to the benefits of the act. First, the relationship of employer and employee must exist between the injured person and his employer (except in some cases where the injured person is an independent contractor); second, the injured person must be in the course of his employment; third, that the employee must be in the actual performance of the duties required by the contract of employment; and, fourth, the work being done must be such as to require payment of industrial insurance premiums or assessments. Referring to the first condition, it should be said that the common-law rules, except as modified by statute, apply in determining whether the relationship of employer and employee exist. Hubbard v. Department of Labor & Industries, 198 Wash. 354, 88 P. (2d) 423; Clausen v. Department of Labor & Industries, 15 Wn. (2d) 62, 129 P. (2d) 777. This court has repeatedly held that the test of the relationship of employer and employee is the right of control on the part of the employer over the employee. Engler v. Seattle, 40 Wash. 72, 82 Pac. 136; Cary v. Sparkman & McLean Co., 62 Wash. 363, 113 Pac. 1093; Glover v. Richardson & Elmer Co., 64 Wash. 403, 116 Pac. 861; North Bend Lbr. Co. v. Chicago M. & P. S. R. Co., 76 Wash. 232, 135 Pac. 1017; Machenheimer v. Department of Labor & Industries, 124 Wash. 259, 214 Pac. 17; Burchett v. Department of Labor & Industries, 146 Wash. 85, 261 Pac. 802, 263 Pac. 746; Hinds v. Department of Labor & Industries, 150 Wash. 230, 272 Pac. 734, 62 A. L. R. 225; Seattle Aerie No. 1 of the Fraternal Order of Eagles v. Commissioner of Unemployment Compensation, 23 Wn. (2d) 167, 160 P. (2d) 614. This rule is easily applied to any case of this nature. There is a definite line which can be drawn between working for an employer and the use of time by an employee for his own purposes. Counsel for the respective parties in this case have called to our attention many cases wherein the general question of whether at the time a claimant was injured he was in the course of his employment was discussed. However, we have one case where the injury to a claimant occurred during the noon hour rest period. That case is Young v. Department of Labor & Industries, 200 Wash. 138, 93 P. (2d) 337, 123 A. L. R. 1171, and is determinative of the question presented here. In that case, the appellant, Young, was employed as a common laborer on the Grand Coulee dam project. During the first four months of his employment, he assisted in the hauling of materials to various parts of the construction, and, during the last four weeks of his work, he was a member of a clean-up crew whose duties were to collect and remove all leftover material, debris, and rubbish from various parts of the dam, as directed by the foreman. Young’s hours of labor were from eight a. m. to twelve noon, and from one p. m. to four p. m. He was paid at the rate of sixty cents per hour. During the noon period, for which the men received no pay, they were not under supervision unless called upon by their foreman to do some special or extra work. The workmen customarily brought their lunches, which they ate on the premises at whatever places they desired. On account of the distances to their homes, it would have been impracticable to do otherwise. On the day he was injured, the appellant, after eating his lunch, descended from the outside of the dam through an opening in its face, proceeded along a gallery, until suddenly he fell down a shaft and was severely injured. It is stated in the opinion that it was not contended appellant went into the interior of the dam for any purpose other than to inspect the premises and to familiarize himself with the character of the construction. The opinion, after quoting Rem. Rev. Stat., § 7675, states: “The statute does not define the phrase ‘in the course of his employment,’ and we therefore look to the cases for the meaning ascribed to it.” We then quoted from 71 C. J. 658, § 404, as follows: “ ‘An injury to an employee arises in the course of his employment when it occurs within the period of his employment, at a place where he may reasonably be, and while he is reasonably fulfilling the duties of his employment or engaged in doing something incidental to it.’ ” (Italics ours.) The opinion continues: “Numerous cases adopting that definition, or others closely similar thereto, are cited in the footnotes to the text. “The test adopted by this court for determining whether an employee is, at a given time, in the course of his employment, is whether the employee was, at the time, engaged in the performance of the duties required of him by his contract of employment, or by specific direction of his employer; or, as sometimes stated, whether he was engaged at the time in the furtherance of the employer’s interest. McGrail v. Department of Labor & Industries, 190 Wash. 272, 67 P. (2d) 851, and cases therein cited.” (Italics ours.) In deciding that the claimant was not entitled to compensation, this court stated: “In this case, it is manifest that appellant’s venture had no connection whatever with his meal. He was not seeking a place where he might eat, nor was he returning to work from a place where he had eaten. He had finished his lunch without any mishap and had entered upon a wholly separate and distinct undertaking. When he began his exploration of the interior of the dam, he was not under the supervision or control of his employer, but was on his own time. He was not then engaged in the performance of any of his obligatory duties or anything incident to them. He was not performing a task in furtherance of his employer’s work or interest, but was engaged in a voluntary exploration of his own conception. We are satisfied that appellant was not in the course of his employment, within the meaning of the workmen’s compensation act. “The situation was nowise altered by the fact that the alleged purpose of appellant’s venture was to acquaint himself with the intricacies of the project and, by thus increasing his value to his employer, ultimately to obtain an increase of wages for himself. The course of his employment required him only to do certain things, at certain times, at specified places, under the supervision of his foreman. It did not require him, nor was he expected, to abandon his routine of work, visit places unfamiliar to him, and expose himself to possible dangers, merely that he might thereby fit himself for a different course of employment. What information he may have expected to gain was solely for his own benefit and in no way contributed to the value of the work which he was engaged to perform. He was not fulfilling any duty required of him by his contract, nor was he furthering the interest of his employer. He was engaged in an independent act having no connection with his work.” It is impossible to visualize cases more alike, in so far as the facts are concerned, than this and the above-cited case. The only difference is that Young was farther away from his place of work when he fell into the shaft than D’Amico was at the time he was injured, and Young could give his reasons for his visit to the dam, while D’Amico’s voice was stilled by death, and there were no witnesses to testify for him on this point. There can be no difference in the reasoning in the above-cited case and the one at bar. At the time of his injury, D’Amico had finished his lunch and was using his own time to gratify a curiosity or maybe learn something about the compressor. As he walked to and stood on the street corner near the compressor, he was not engaged in any duty imposed by his employer, nor was he subject to any supervision by his employer. He was not engaged in any task which had for its purpose the advancement of his employer’s work. He was not being paid by his employer, nor was the company further being enriched by his connection with an extrahazardous occupation. In simple words, D’Amico at the time of his injury, and in fact during the whole noon hour, was not in the employ of the Malaspino Company. Other decisions of this court supporting this conclusion are: Hoffman v. Hansen, 118 Wash. 73, 203 Pac. 53; Hama Hama Logging Co. v. Department of Labor & Industries, 157 Wash. 96, 288 Pac. 655; Haaga v. Saginaw Logging Co., 165 Wash. 367, 5 P. (2d) 505; Hill v. Department of Labor & Industries, 173 Wash. 575, 24 P. (2d) 95; Blankenship v. Department of Labor & Industries, 180 Wash. 108, 39 P. (2d) 981; McGrail v. Department of Labor & Industries, 190 Wash. 272, 67 P. (2d) 851; Wood v. Chambers Packing Co., 190 Wash. 411, 68 P. (2d) 221; Maeda v. Department of Labor & Industries, 192 Wash. 87, 72 P. (2d) 1034; and Waddams v. Wright, 21 Wn. (2d) 603, 152 P. (2d) 611. ■ Our attention has been called to the fact that, in some of our cases, we have made statements which would indicate our adherence to a rule that an employee was in the course of his employment when he was eating lunch. Those statements, however, were made in the course of our reasoning and did not, and could not, announce our adherence to such a rule because the question was not present in any of those cases. Appellants ask for a liberal construction of the workmen’s compensation act in order to allow respondent its benefits. We cannot agree with this suggestion. Workmen’s compensation acts are liberally construed to those who come within its provisions. However, individuals who make applications for benefits are held to strict proof of their right to receive those benefits. Kirk v. Department of Labor & Industries, 192 Wash. 671, 74 P. (2d) 227; Clausen v. Department of Labor & Industries, 15 Wn. (2d) 62, 129 P. (2d) 777; DeHaas v. Cascade Frozen Foods, Inc., 23 Wn. (2d) 754, 162 P. (2d) 284. It is our conclusion that, at the time D’Amico was injured, he was not engaged in extrahazardous work, and that therefore his widow, acting as administratrix of his estate, was entitled to maintain this action. A reading of the statement of facts convinces us that there was sufficient evidence on the part of appellants’ representative to take the case to the jury, and that the verdict should not be disturbed. Instructions Nos. 7 and 11 read as follows: “No. 7. You are instructed that when a thing which causes an injury to another is shown to be under the management and control of a person charged with negligence in the operation of such thing or the failure to keep it in a reasonably safe condition, and if it is shown that an accident happened which in the ordinary course of things does not happen, if those in charge of its management and control exercise reasonable care, then the happening of said accidents afford reasonable evidence, in the absence of explanation by the person charged with negligence, that the accident arose from the want of reasonable ■ care on the part of such person.” “No. 11. If you find from the evidence that the fact that the wheels of defendants’ truck came off was such a thing' that would not, in the ordinary course of events, happen if those who had the control, supervision and operation thereof had used proper and reasonable care, then I instruct you that you may infer from the fact that such wheels did so come off that such coming off was due to the negligence of the driver of the truck or of the defendants, and a prima facie case is thereby established in favor of the plaintiff. “The burden then devolves upon the defendants to furnish an explanation or rebuttal of such prima facie case by producing evidence of due care and precaution under the circumstances and conditions necessarily within defendants’ exclusive control. If, then, after considering such explanations of the whole case, and of all the issues as to negligence, injury and damages, the evidence still prepon derates in favor of the plaintiff, then plaintiff is entitled to recover; otherwise not.” It is argued by appellants that the question or doctrine of res ipsa loquitur was improperly given. It is their contention that this doctrine is merely a legal presentation to be used when there has been no evidence introduced explaining the cause of a happening; further, that it is a substitute for evidence, and not the evidence itself. That the instructions were properly given is demonstrated by the following quotations: “The rule, under such circumstances, is: “ ‘When a thing which causes injury is shown to be under the management of the defendant, and the accident is such as in the ordinary course of things does not happen, if those who have the management use proper care, it affords reasonable evidence, in the absence of explanation by the defendant, that the accident arose from a want of care.’ 1 Shearman & Redfield on Negligence (6th ed.), § 59; Wodnik v. Luna Park Amusement Co., 69 Wash. 638, 125 Pac. 941, 42 L. R. A. (N.S.) 1070. “Proof of regular inspection of the machine still leaves the question of negligence one for the jury. Lane v. Spokane Falls & Northern Railway Co., 21 Wash. 119, 57 Pac. 367, 75 Am. St. 821, 46 L. R. A. 153. The presumption is overcome as a matter of law only when the explanation shows, without dispute, the happening was due to a cause not chargeable to defendant’s negligence. Scarpelli v. Washington Water Power Co., 63 Wash. 18, 114 Pac. 870. “Nor does the allegation and proof of specific negligence deprive a plaintiff of the benefit of the rule. Walters v. Seattle, Renton & Southern R. Co., 48 Wash. 233, 93 Pac. 419, 24 L.R.A. (N.S.) 788; Kluska v. Yeomans, 54 Wash. 465, 103 Pac. 819, 132 Am. St. 1121. There is nothing said in the case of Anderson v. Northern Pacific R. Co., 88 Wash. 139, 152 Pac. 1001, L.R.A. 1917F, 1020, which conflicts with the foregoing statement of the rule. It is true, language was used in Osborne v. Charbneau, 148 Wash. 359, 268 Pac. 884, 64 A.L.R. 251, which might be construed in conflict with the above statement, but it was unnecessary to the decision and is clearly obiter.” Highland v. Wilsonian Inv. Co., 171 Wash. 34, 17 P. (2d) 631. “This court has adopted the rule that, even though a plaintiff should base his action upon the doctrine of res ipsa loquitur, he may plead and prove specific acts of negligence on the part of the defendant and rely upon the presumption of negligence and, also, upon his proof of specific acts of negligence in support of his right to recover. Walters v. Seattle, Renton & Southern R. Co., 48 Wash. 233, 93 Pac. 419, 24 L.R.A. (N.S.) 788; Kluska v. Yeomans, 54 Wash. 465, 103 Pac. 819, 132 Am. St. 1121; Highland v. Wilsonian Inv. Co., 171 Wash. 34, 17 P. (2d) 631.” Case v. Peterson, 17 Wn. (2d) 523, 136 P. (2d) 192. In instruction No. 13, the court explained to the jury the facts relative to the existence of the workmen’s compensation act, and its provisions for compensating injured workmen and their families. The court then defined the meaning of the word “workman” as implied in the act. He told the jury that D’Amico’s employer and appellants were engaged in extrahazardous occupations, and ended the instruction in the following language: “ ‘An injury to an employee arises “in the course of his employment” when it occurs within the period of his employment at a place where he may reasonably be and while he is reasonably fulfilling the duties of his employment or engaged in doing something incidental to it.’ “The test for determining whether an employee is, at a given time, ‘in the course of his employment,’ is whether the employee was, at the time engaged in the performance of the duties required of him by his contract of employment, or by specific direction of his employer; or, as sometimes stated, whether he was engaged at the time in the furtherance of the employer’s interest. “If, therefore, you find from a fair preponderance of the evidence that deceased Joseph D’Amico, at the time of his injury, was doing something incidental to his employment and in furtherance of the interests of his employer, then his widow and his minor children must have recourse to the provisions of the Workmen’s Compensation Act which accord relief to them, and your verdict must be for the defendants in this case. “If, however, you find from a fair preponderance of the evidence that the deceased Joseph D’Amico, at the time of his injury was not engaged in the performance of the duties required of him by his contract of employment or by specific direction of his employer, then and in that event the plain tiff’s right of action would not be barred by the Workmen’s Compensation Act.” The instruction was entirely proper in that it clearly stated the law and defined the rights of the parties under that law. Proposed instruction No. 2 related to the questions included in instruction No. 13. We have examined the proposed instruction and find that its essence was included within the instructions given by the court. Finding no error in the record, we affirm the judgment. Driver, C. J., Beals, Millard, Blake, and Mallery, JJ., concur.

Steinert, J. Don Towne, alias Donald Towne, filed in this court his petition for a writ of habeas corpus, alleging that he is being illegally restrained of his liberty by the superintendent of the state penitentiary. In response to an order to show cause, the superintendent made a return reciting the facts concerning petitioner’s incarceration and detention, and, in justification of his continued restraint of the prisoner, presented certified copies of the various legal proceedings leading to petitioner’s commitment. The history of this case is fully shown by the record now before us, as follows: On May 21, 1934, petitioner was convicted of the crime of burglary in the second degree and was sentenced to confinement in the state reformatory for a period of not less than six, nor more than eighteen, months, the sentence being at the same time suspended during good behavior. On October 21, 1937, an information was filed in Benton county, in cause number 758, charging petitioner with the crime of robbery. Petitioner pleaded not guilty and proceeded to trial before a jury on the same day. The trial concluded late in the afternoon of October 22nd, and, on the following day, at 12:10 o’clock p. m., the jury returned a verdict finding petitioner guilty of the lesser, and included, crime of petit larceny. Immediately thereafter, the prosecuting attorney filed an information in the same cause, number 758, charging petitioner with being an habitual criminal. Petitioner pleaded not guilty and at once submitted himself to trial before a jury then empaneled. At the conclusion of the evidence, the jury after a brief deliberation returned a verdict of guilty upon the latter charge, and in support of its verdict brought in special findings of petitioner’s previous convictions. Two days later, October 25, 1937, petitioner served and filed his motion in arrest of judgment with reference to the latter conviction. On October 28th, the court denied the motion, and likewise petitioner’s motion for new trial. On the same day, the court signed and entered its judgment upon the petit larceny conviction, imposing a sentence of confinement in the county jail for a period of four months and twenty-two days, with credit allowed to petitioner for the time he had already spent in jail since his arrest. On that day, October 28, 1937, the court also signed and entered its judgment upon the habitual criminal verdict. That judgment recited the previous convictions of the petitioner, declared him guilty of the crime of being an habitual criminal by reason of such convictions, and imposed a sentence of confinement in the state penitentiary for a period of not more than twenty, nor less than ten, years. This latter judgment was recorded in the superior court journal ahead of the judgment upon the petit larceny conviction, but for the purposes of this case we. will assume, as petitioner has assumed, that the judgment upon the petit larceny-charge was entered first. On December 13, 1937, the court, on motion of the petitioner, signed and entered an amended judgment striking the minimum term of confinement in the penitentiary, as fixed in the original judgment of conviction upon the habitual criminal charge. That fact is, however, of no importance here. Upon the hearing in this court, two questions are presented for our decision: (1) Is the petitioner now held in confinement under a valid sentence and commitment, and (2), if he is not so held, is he therefore now entitled to an immediate and absolute discharge from any custody exercised by the prison authorities? There is no dispute between the parties upon the first question, for the respondent concedes that the sentence under which petitioner stands committed and imprisoned in the penitentiary is invalid. We shall nevertheless consider and rule upon that question. This court has definitely held that one charged with being an habitual criminal is not thereby charged with a substantive crime but merely with a status, which, if the charge is substantiated, calls for increased punishment for the latest crime of which the accused has been convicted; further, that the habitual criminal charge is related to the conviction for a prior substantive crime only to the extent that the sentence for that crime is mandatorily made more severe. State ex rel. Edelstein v. Huneke, 138 Wash. 495, 244 Pac. 721; State v. Fowler, 187 Wash. 450, 60 P. (2d) 83; State v. Johnson, 194 Wash. 438, 78 P. (2d) 561; State v. Domanski, 5 Wn. (2d) 686, 106 P. (2d) 591; Blake v. Mahoney, 9 Wn. (2d) 110, 113 P. (2d) 1028; In re Lombardi, 13 Wn. (2d) 1, 123 P. (2d) 764; In re Cress, 13 Wn. (2d) 7, 123 P. (2d) 767; accord, State v. Furth, 5 Wn. (2d) 1, 104 P. (2d) 925. We have also held that any judgment of conviction for the alleged crime of being an habitual criminal, and any sentence based upon such judgment, are not merely erroneous or irregular, but are absolutely void. Blake v. Mahoney, supra; In re Lombardi, supra; In re Cress, supra; State v. Dooly, ante p. 459, 128 P. (2d) 486. We have further held that if a judgment under which one is restrained of his liberty is utterly void, and not merely voidable, it may be assailed, and habeas corpus is a proper remedy. In re Lombardi, supra; accord, In re Blystone, 75 Wash. 286, 134 Pac. 827; Williams v. McCauley, 7 Wn. (2d) 1, 108 P. (2d) 822; Voigt v. Mahoney, 10 Wn. (2d) 157, 116 P. (2d) 300. Such is the rule generally. See 25 Am. Jur. 184, Habeas Corpus, § 55; 29 C. J. 51, Habeas Corpus, § 46; Note (1932) 76 A. L. R. 468, 495. From the face of the record in this case, it clearly appears that the petitioner was sentenced to confinement in the state penitentiary solely upon a judgment of conviction for the supposititious crime of being an habitual criminal, and not upon a judgment of conviction for the substantive crime of petit larceny, requiring the imposition of increased punishment because petitioner had in the meantime been adjudged an habitual criminal. The court was without power to render judgment based solely upon the habitual criminal conviction, and consequently that judgment and the sentence thereunder were absolutely void and are now so declared. We come, then, to the crucial question in this case, namely, whether the petitioner is now entitled to an immediate and absolute discharge from all official custody. As heretofore shown, the record discloses the following pertinent facts: (1) On October 23, 1937, petitioner was found guilty of the crime of petit larceny; (2) thereafter on the same day, and in the same cause, an information was filed charging petitioner with being an habitual criminal; (3) on that day, also, he was tried upon the latter charge and was found guilty, that is, he was found to have the status of an habitual criminal by reason of prior convictions; (4) on October 28, 1937, judgment was entered, and sentence imposed, upon petitioner’s conviction for the crime of petit larceny; (5) following that, on the same day, judgment was entered, and sentence imposed, upon his conviction, or rather determination, of being an habitual criminal. This latter judgment and sentence we have herein already declared null and void. However, the important factor to be remembered in the determination of the question now under consideration is that the information charging petitioner with being an habitual criminal was filed after the return of the verdict finding him guilty of the crime of petit larceny, but before the entry of any judgment on that verdict or any other verdict. That order of procedure has been repeatedly approved by this court. State ex rel. Edel-stein v. Huneke, 138 Wash. 495, 244 Pac. 721; State ex rel. Edelstein v. Huneke, 140 Wash. 385, 249 Pac. 784; State v. Plautz, 185 Wash. 578, 55 P. (2d) 1057; State v. Delano, 189 Wash. 230, 64 P. (2d) 511; State v. Courser, 199 Wash. 559, 92 P. (2d) 264. Piling an habitual criminal charge, following a conviction of the accused for a substantive crime, is not for the purpose of prosecuting or punishing the accused for a separate or distinct offense. The purpose is simply to enable the court to determine the previous criminal record of the defendant and, if the required number of prior convictions has been established, to impose the mandatory sentence required by statute. Until such pending charge of being an habitual criminal has been tried out, the court is without power to sentence the defendant for the particular crime of which he has been convicted next before the filing of the habitual criminal charge. In State ex rel. Edel-stein v. Huneke, 138 Wash. 495, 244 Pac. 721, it appears that, after the jury had returned a verdict of guilty upon a charge of burglary, the prosecuting attorney filed an information against the defendant charging him with being an habitual criminal. Thereafter, while the habitual criminal charge was still pending, the trial court sentenced the defendant upon his conviction on the burglary charge. We held the sentence a nullity, saying: “We think that, while this charge [of being an habitual criminal] was pending before the court, it was without power to sentence defendant upon the burglary charge until the issue of prior convictions was determined. It could not know what sentence was mandatory under the statute, until the charge of being an habitual criminal had been tried out. The sentence of the court [upon the burglary charge], therefore, we think, was a nullity.” In the case at bar, during the time the habitual criminal charge was pending and undetermined the trial court entered judgment sentencing the petitioner to confinement in the county jail upon the petit larceny charge. That judgment was premature and the sentence thereunder was beyond the power of the court to impose. The judgment and sentence are therefore void. Petitioner’s contention herein is predicated upon his assertion that the habitual criminal charge was filed, or must be presumed to have been filed, after he had been sentenced upon his conviction on the petit larceny charge, thus bringing him within the rule an nounced in the case of In re Lombardi, 13 Wn. (2d) 1, 123 P. (2d) 764, already cited herein. In that case, the petitioner was, on June 5, 1924, convicted of the crime of grand larceny. On June 14th, judgment of conviction for the commission of that crime was signed, sentence was formally pronounced, and commitment was issued. On the same day, an information charging the petitioner with being an habitual criminal was filed in the office of the clerk of the superior court, and, on September 15, 1924 (as appears by reference to the original record in that case), the petitioner was found guilty on that charge. On October 14th following, the court signed and entered a formal judgment of conviction and sentence upon the charge of being an habitual criminal. Upon the petitioner’s application for a writ of habeas corpus, this court held that the writ should issue, for the reason that from the record therein presented it was impossible to determine the exact time that the formal judgment of conviction for burglary was signed, or to fix the precise minute when the habitual criminal information was filed. In the absence of any showing as to which event occurred first, and every presumption being in favor of the validity and effectiveness of a formal judgment of court, we held the judgment of conviction for grand larceny valid and effective, because presumptively it had been entered at a time when the record in that case was clear of any impediment to the entry of judgment upon that conviction. On that ground alone we held that an information subsequently filed, charging the petitioner with being an habitual criminal, was a mere nullity, and his trial and conviction thereon, and his sentence pursuant thereto, void. The Lombardi case is not only not contrary to our holding herein, but is entirely consistent with, and authority for, our present decision, because in this case it clearly appears that the habitual criminal information was filed five days before the entry of the judgment upon the petit larceny charge, and there can be no possible ground for a presumption to the contrary. We thus have this situation: Petitioner has been convicted of the crime of petit larceny, and has also been found to be an habitual criminal; he has, furthermore, been sentenced twice, once upon the petit larceny charge, and once upon the habitual criminal charge. But, as already declared herein, both of those sentences are void. Petitioner’s status is, therefore, that of a convicted criminal who has not yet been properly sentenced. There are two recent cases from this court which have dealt explicitly with similar situations: Blake v. Mahoney, supra, and In re Cress, supra. In the Blake case, we said: “The petitioner is not entitled to be released on habeas corpus on account of being held under a void sentence and commitment upon the habitual criminal charge, inasmuch as he may still be sentenced upon the robbery charge [on which he had been most recently convicted] by a proper judgment entered in that case, taking into consideration the habitual criminal conviction. The petitioner should be returned to the court in which he was convicted of robbery for re-sentence.” In the Cress case, we reexamined the Blake case in the light of certain events which had subsequently transpired in that case. We held that, while the petitioner Cress was entitled to be released from the particular custody asserted and enforced by the superintendent of the penitentiary under a commitment of the accused as an habitual criminal, the petitioner was not entitled to an absolute and complete discharge from custody. We accordingly ordered that the prisoner be delivered by the superintendent into the custody of the sheriff of the county wherein the sentence upon conviction had been imposed, there to be dealt with by the superior court of that county as directed in our order. Upon the authority of the Blake and Cress cases, and following the procedure prescribed in the latter case, we now order and direct the superintendent of the state penitentiary, respondent herein, to deliver the petitioner into the custody of the sheriff of Benton county, for resentence by the superior court of that county, taking into consideration the habitual criminal conviction. If, at the expiration of thirty days from the time of his delivery into the custody of the sheriff, the petitioner shall not have been resentenced, he shall have the right to apply to this court for final judgment upon his petition herein. Millard, Blake, Simpson, and Driver, JJ., concur.

Durham, J. Raymond and Audrey Badgett (the Badgetts) brought an action for damages against Security State Bank (the Bank) after the Bank refused to restructure their agricultural loans. The trial court granted summary judgment in favor of the Bank and dismissed the claims. It also granted the Bank summary judgment on its counterclaims for monies due and entered a decree of foreclosure. The Court of Appeals reversed and remanded for trial, holding that the Bank may have had a good faith duty to consider the Badgetts' proposals for restructuring the loan. We reverse the Court of Appeals and reinstate the trial court's dismissal of the damages claims and entry of the decree of foreclosure. In 1981, the Badgetts borrowed $476,000 from the Bank for their dairy operation. $336,000 of this amount was an intermediate term loan, and the remaining $140,000 was for operating expenses. The contract for the term loan had a 1-year call or maturity date, but was amortized over 5 to 10 years. According to the Badgetts' first loan officer, it was a fairly typical practice for agricultural loans to be re-examined yearly to recap collateral positions, update financial statements, and make projections for the coming year. In 1984, the Badgetts decided to quit the dairy business. They asked the Bank for assistance in restructuring their loans so they could liquidate their assets and participate in a government diversion program. After a series of negotiations, the parties agreed to a liquidation plan, evidenced by a new promissory note, a security agreement and general pledge, and a security agreement for crops, livestock, and farm products. In May 1985, the Badgetts decided to re-enter the dairy business and they requested new financing. The Bank sent a letter to the Badgetts asking for additional financial information and indicating that, in the event new financing was agreed to, a written loan agreement would be required. On September 5, 1985, after a series of negotiations, the parties executed a loan agreement and new promissory note in the amount of $1,050,000. The loan agreement was secured by livestock, equipment, feed inventories, and junior liens on all real estate. It expressly provided that "[additional advances or increased commitments for any purpose are not contemplated at this time" (italics ours), and that the written agreement "contains the entire loan agreement between Borrower and Security State Bank with respect to the loan transaction." Clerk's Papers, at 134-35. In early 1986, the Badgetts again decided to retire from the dairy business and considered participating in the federal government's Dairy Termination Program (DTP). Under this program, participants were selected on the basis of bids, and they were required to keep their milk facilities out of production for 5 years. The Badgetts had considered entering a bid of $18 per hundredweight of milk production, for which they could have expected to receive $1,600,000. On March 3,1986, the Badgetts and their attorney, Rene Remund, met with their current loan officer, Joe Cooke, and the Bank's attorney, John Hall. The Badgetts initially proposed that the Bank accept $1,300,000, part of the amount they expected to receive through participation in the DTP, in satisfaction of the $1,500,000 debt and forgive the remaining $200,000. Cooke declined to accept this proposal. The parties then discussed the possibility of sale of the cattle at auction. They also discussed the possibility of deferring payment of $200,000, with the Bank releasing its existing collateral and accepting unspecified real estate to Secure the remaining debt. No specific parcel was proposed, and neither terms of repayment nor interest rate were discussed. Cooke was to meet with the loan committee and get back to the Badgetts with an answer. The Badgetts left the meeting knowing that an agreement had not been reached and further negotiations were necessary. Cooke then met with the loan committee of the Bank. The Bank did not accept the Badgetts' proposal and did not make an offer. The Badgetts contend that Cooke misrepresented their offer by presenting it to the committee as non-negotiable. Gail Shaw, who was a member of the loan committee, stated that his impression, which he got from Cooke, although "[n]ot by specific words", was that the Badgetts' proposal was non-negotiable. His impression was based in part on the fact that the Badgetts were operating under a tight time frame because bids for participation in the DTP were due by March 7. Thus, there was not really time to negotiate about the $18 bid underlying the proposal. Shaw also stated that he was disappointed that the Badgetts had not made a formal proposal because the proposal was "not conveyed clearly to [Cooke]", and Shaw "ha[d] to admit [from reading the notes of the meeting] that it appears that [Cooke] didn't understand [the proposal]." On March 7, the Badgetts submitted a bid to the DTP of $25.89 per hundredweight. On March 28, 1986, they learned that their bid to the DTP was not accepted. Prior to that time, the Badgetts had made their loan payments according to the terms of the note. However, on April 3, 1986, their loan payment was for less than the agreed amount and they stopped making payments thereafter. On April 14, 1986, the Badgetts and the Bank entered into a written agreement to auction certain collateral. The sale of the herd and machinery realized net proceeds of $374,447.85. On September 11, 1986, the Badgetts filed a complaint against the Bank for $2 million in damages alleging, in part, that the Bank had unreasonably refused permission for the Badgetts to participate in the DTP. They also made a Consumer Protection Act (CPA) claim. The Bank filed a counterclaim for payment of monies due and foreclosure. The trial court granted summary judgment to the Bank, dismissing the Badgetts' claims, ruling that the Bank was under no duty to negotiate and that a prior course of conduct cannot create a new obligation on the part of the Bank. The court also granted the Bank summary judgment on its counterclaims and entered a decree of foreclosure. The Court of Appeals reversed and remanded for trial stating that there was "enough evidence to support a reasonable inference that the parties' course of dealing had created a good faith obligation on the part of the Bank to consider the Badgetts' proposals" and that the existence of a course of dealing and good faith are issues of fact. Badgett v. Security State Bank, 56 Wn. App. 872, 878, 786 P.2d 302 (1990). The court cautioned that its holding was "not to be construed as imposing an obligation to modify this or any contract. Rather, the Bank's freedom to reject the Badgetts' proposals is relevant to the question of whether the failure to consider them was the proximate cause of the Badgetts' losses." Badgett, at 878 n.4. This court granted the Bank's petition for review. In reviewing an order of summary judgment, this court engages in the same inquiry as the trial court. Summary judgment is proper if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Wilson v. Steinbach, 98 Wn.2d 434, 437, 656 P.2d 1030 (1982). The Badgetts contend that the Bank had a duty to consider their proposal and that the Bank breached that duty because Cooke inaccurately relayed their proposal to the loan committee. Thus, the threshold question is whether or not, as a matter of law, the Bank had a duty to consider the proposal. If not, the manner in which the proposal was conveyed or considered is not a material fact. See Allied Sheet Metal Fabricators, Inc. v. Peoples Nat'l Bank, 10 Wn. App. 530, 536 n.5, 518 P.2d 734 (facts plaintiff alleged showed lack of good faith on the part of Bank in manner it collected demand notes were not material because they raised no factual issue as to Bank's right to declare the notes due and owing and to collect the funds), review denied, 83 Wn.2d 1013, cert. denied, 419 U.S. 967 (1974). The Badgetts do not contend that any express term in the loan agreement required the Bank to consider their proposal. Nor do they argue that the Bank was under any obligation to modify the agreement. Rather, they assert that the Bank was obligated by the duty of good faith implicit in every contract to affirmatively cooperate with them in their efforts to participate in the DTP and restructure their loan. The duty of good faith is not as broad as the Badgetts suggest. There is in every contract an implied duty of good faith and fair dealing. This duty obligates the parties to cooperate with each other so that each may obtain the full benefit of performance. Metropolitan Park Dist. v. Griffith, 106 Wn,2d 425, 437, 723 P.2d 1093 (1986); Lonsdale v. Chesterfield, 99 Wn.2d 353, 357, 662 P.2d 385 (1983); Miller v. Othello Packers, Inc., 67 Wn.2d 842, 844, 410 P.2d 33 (1966). However, the duty of good faith does not extend to obligate a party to accept a material change in the terms of its contract. Betchard-Clayton, Inc. v. King, 41 Wn. App. 887, 890, 707 P.2d 1361, review denied, 104 Wn.2d 1027 (1985). Nor does it "inject substantive terms into the parties' contract". Rather, it requires only that the parties perform in good faith the obligations imposed by their agreement. Barrett v. Weyerhaeuser Co. Severance Pay Plan, 40 Wn. App. 630, 635 n.6, 700 P.2d 338 (1985). Thus, the duty arises only in connection with terms agreed to by the parties. See Matson v. Emory, 36 Wn. App. 681, 676 P.2d 1029 (1984); Lonsdale v. Chesterfield, 99 Wn.2d 353, 662 P.2d 385 (1983); CHG Int'l, Inc. v. Robin Lee, Inc., 35 Wn. App. 512, 667 P.2d 1127, review denied, 100 Wn.2d 1029 (1983); Miller v. Othello Packers, Inc., 67 Wn.2d 842, 843-44, 410 P.2d 33 (1966). By urging this court to find that the Bank had a good faith duty to affirmatively cooperate in their efforts to restructure the loan agreement, in effect the Badgetts ask us to expand the existing duty of good faith to create obligations on the parties in addition to those contained in the contract—a free-floating duty of good faith unattached to the underlying legal document. This we will not do. The duty to cooperate exists only in relation to performance of a specific contract term. See Cavell v. Hughes, 29 Wn. App. 536, 629 P.2d 927 (1981); Long v. T-H Trucking Co., 4 Wn. App. 922, 926, 486 P.2d 300 (1971). As a matter of law, there cannot be a breach of the duty of good faith when a party simply stands on its rights to require performance of a contract according to its terms. Allied Sheet Metal, 10 Wn. App. at 535-36; accord, Creeger Brick & Bldg. Supply Inc. v. Mid-State Bank & Trust Co., 385 Pa. Super. 30, 560 A.2d 151 (1989). The Badgetts received the full benefit of their contract when they received the amount of money they bargained for at the agreed rate of interest for the agreed period of time. See Layne v. Fort Carson Nat'l Bank, 655 P.2d 856 (Colo. Ct. App. 1982) (good faith requirement of the U.C.C. not violated when Bank stood on its rights under security agreement by refusing to consent to plaintiff's sale of collateral and assumption by purchasers of existing terms of note unless purchasers would agree to a 5 percent increase in the interest rate); Creeger, at 37 (a lender is generally not liable for harm caused to a borrower by refusing to advance additional funds, release collateral, or assist in obtaining additional loans from third persons). The Badgetts rely on Metropolitan Park Dist. v. Griffith, supra, to support their assertion that the Bank had a good faith obligation to consider their proposals. Metropolitan Park provides little, if any, support for the existence of such a duty in these circumstances. In Metropolitan Park, a park district entered into an agreement with Hal E. Griffith, granting him concession rights in parks owned or controlled by the District. Griffith made numerous proposals to the District to persuade it to allow Griffith to serve alcohol in a restaurant he operated under the contract. The District declined to permit alcohol. Metropolitan Park, at 429. Griffith brought a claim for breach of contract, asserting that the implied duty of good faith in every contract obligated the District to consider his proposals on the merits. Metropolitan Park, at 437. This court stated that "under its implied covenant of good faith, the District may have had an implicit obligation to consider Griffith's proposals for changes and improvements." (Italics ours.) Metropolitan Park, at 437. However, the court declined to decide the issue because, even if such a duty existed, the evidence did not support Griffith's assertion that the park district had not considered his proposals. Metropolitan Park, at 437. More importantly, the language quoted above was tied directly to the circumstances of that case: "Although the parties to [the] agreement did not anticipate that the future development which Griffith had initially proposed would necessarily occur, they did contemplate such development" when they entered into the agreement. Metropolitan Park, at 437. In contrast, there is no evidence in the present case that the parties contemplated that the Badgetts would seek a restructuring of the agreement to facilitate another attempt to quit the dairy business. Indeed, as already noted, the loan agreement expressly states that it constitutes the entire agreement between the parties and no additional advances or increased commitments were contemplated for any purpose. The Bank and the Badgetts entered into a written loan agreement. While the parties may choose to renegotiate their agreement, they are under no good faith obligation to do so. The duty of good faith implied in every contract does not exist apart from the terms of the agreement. The Badgetts next contend that because the Bank had anticipated changes in the Badgetts' financial situation and had been flexible in dealing with them in the past, the parties' course of dealing had created a good faith obligation on the part of the Bank to consider the Badgetts' proposals. However, a course of dealing does not override express terms in a contract or add additional obligations. Rather, it is a tool for interpreting the provisions of a contract. The concept of relying on the parties' course of dealing to interpret contract provisions is found in the Uniform Commercial Code (U.C.C.). The U.C.C. has been applied by analogy to contracts not explicitly covered by its provisions. See Liebergesell v. Evans, 93 Wn.2d 881, 892, 613 P.2d 1170 (1980). RCW 62A.1-205(1) defines a course of dealing as: a sequence of previous conduct between the parties to a particular transaction which is fairly to be regarded as establishing a common basis of understanding for interpreting their expressions and other conduct. (Italics ours.) See also Schaller v. Marine Nat'l Bank, 131 Wis. 2d 389, 388 N.W.2d 645 (course of dealing is a tool for interpreting existing contract), review denied, 393 N.W.2d 297 (1986). Under RCW 62A.1-205(4), the express terms of an agreement and an applicable course of dealing "shall be construed wherever reasonable as consistent with each other". However, when such construction is unreasonable, express terms control. RCW 62A.1-205(4). See also Flagship Nat'l Bank v. Gray Distrib. Sys., Inc., 485 So. 2d 1336, 1340 (Fla. Dist. Ct. App.), review denied, 497 So. 2d 1217 (Fla. 1986). Thus, the trial court was correct in concluding that prior course of conduct cannot create a new obligation on the part of the Bank. Report of Proceedings, at 50. Because the Badgetts are not asking this court to interpret any provision in the loan agreement as imposing a duty on the Bank to consider their proposals, facts relating to prior dealings between the Badgetts and the Bank are not material for the purpose of defeating the Bank's motion for summary judgment. Finally, the Badgetts contend that a duty on the part of the Bank to consider their proposals may have arisen as a result of Cooke's promise to relay their proposal to the loan committee. However, the Badgetts acknowledge that their proposal was just that—a proposal, not an agreement—and further negotiations were necessary. Cooke's presentation to the loan committee was a step in the negotiation process. "[A]n agreement to do something which requires a further meeting of the minds of the parties and without which it would not be complete is unenforcible [sic].” Sandeman v. Sayres, 50 Wn.2d 539, 541-42, 314 P.2d 428 (1957); accord, Wharf Restaurant, Inc. v. Port of Seattle, 24 Wn. App. 601, 609, 605 P.2d 334 (1979). If Cooke's promise to negotiate is unenforceable, it follows that it cannot give rise to a contractual duty. In sum, we hold that the implied duty of good faith in every contract did not give rise to a duty on the part of the Bank to consider the Badgetts' proposal. The duty arises, if at all, in connection with contract terms. The loan agreement did not obligate the Bank to consider the Badgetts' proposal. Because there is no duty to consider the proposal, the Bank is entitled to summary judgment as a matter of law. Accordingly, we reverse the Court of Appeals and reinstate the trial court's granting of summary judgment dismissing the Badgetts' claims. The Court of Appeals did not directly address the trial court's order granting summary judgment in favor of the Bank on its counterclaims. However, the Badgetts acknowledge that their affirmative defenses to the counterclaims are based on the same facts and defenses as their claims against the Bank. There is no dispute as to the amount due and owing. Under their own analysis, dismissal of their damages claims necessarily leads to the granting of the Bank’s counterclaims. Thus, reversal of the Court of Appeals supports reinstatement of the trial court's orders on both summary judgment motions. Dore, C.J., and Utter, Brachtenbach, Dolliver, Andersen, Smith, and Guy, JJ., concur. Reconsideration denied May 22, 1991. In addition to their affirmative defenses, the Badgetts argued to both the trial court and the Court of Appeals that summary judgment was not proper on the Bank's counterclaims because the Bank had a duty to mitigate its damages by working with the Badgetts on their proposal to participate in the DTP. The trial court ruled against the Badgetts on this issue. Because it was not discussed by the Court of Appeals, and neither party has argued it in connection with the petition for review, we do not reach it here. The Court of Appeals relied on Liebergesell v. Evans, 93 Wn.2d 881, 613 P.2d 1170 (1980), to assert that "the scope oí the good faith obligation can be expanded by the conduct of a contracting party which gives rise to reasonable expectations on the part of the other party." Badgett, 56 Wn. App. at 877. Liebergesell is not on point, and more importantly, does not support the broad conclusion stated by the Court of Appeals. In Liebergesell, defendants entered into a contract with plaintiffs to borrow money at interest rates, proposed by the defendants, which defendants knew were illegal and unenforceable. The court stated that the law cannot allow contracting parties to deceive one another when there is a duty to act in good faith. Liebergesell, at 891-92. Liebergesell held only that "the duty to disclose relevant information to a contractual party [during negotiation] can arise as a result of the transaction itself within the parties' general obligation to deal in good faith." (Footnote omitted.) Liebergesell, at 893. As pointed out in the amicus brief filed by counsel on behalf of the Washington Bankers Association and the American Bankers Association, a duty to consider proposals might easily lead to a duty to negotiate such proposals. This, in turn, will increase transaction costs for the parties and decrease economic efficiency. More importantly, it may operate to relieve a party of its obligations under an otherwise valid contract. Any request for modification would impose a duty to negotiate, which would then open the door for factual allegations of a lack of good faith in negotiating. The Court of Appeals relied, in part, on a course of dealing analysis in concluding that the Bank had a duty to consider the Badgetts' proposals. However, the cases cited in support of its conclusion are inapposite. In each of the cited cases, the court was asked to determine issues of waiver, interpretation, or modification of specific, express contract terms. Central Wash. Prod. Credit Ass'n v. Baker, 11 Wn. App. 17, 521 P.2d 226 (1974) (waiver of contract term requiring written consent before collateral was sold); Dunn v. General Equities of Iowa, Ltd., 319 N.W.2d 515 (Iowa 1982) (waiver of right to enforce an acceleration clause in an installment note); In re Samuels & Co., 526 F.2d 1238 (5th Cir.) (interpretation of sales provision), cert. denied, 429 U.S. 834 (1976); Peck v. Augustin Bros. Co., 203 Neb. 574, 279 N.W.2d 397 (1979) (interpretation of sales provision); Neal-Cooper Grain Co. v. Texas Gulf Sulphur Co., 508 F.2d 283 (7th Cir. 1974) (course of dealing is used to interpret contract term; further, no conflict existed between course of dealing and express terms of contract); Luedtke Eng'g Co. v. Indiana Limestone Co., 740 F.2d 598 (7th Cir. 1984) (interpretation of provision establishing shipping requirements); Farmers Elevator Co. v. Anderson, 170 Mont. 175, 552 P.2d 63 (1976) (modification of original oral contract as to date of delivery). Moreover, even if a course of dealing analysis was applicable, the express terms of the contract, which prevail over any inference based on a course of dealing, foreclose any finding that a duty to consider proposals exists. The agreement provides that " [additional advances or increased commitments for any purpose [were] not contemplated" at the time the agreement was made. Clerk's Papers, at 134. Additionally, the agreement merges all prior negotiations, interpretations and oral or written loan agreements between Borrower and Security State Bank and contains the entire loan agreement between Borrower and Security State Bank with respect to the loan transaction. No amendment or interpretation of this Agreement shall be binding upon the Borrower or Security State Bank unless such amendment or interpretation is reduced to writing, signed by the parties and attached to this Agreement. Clerk's Papers, at 135.

Ward, J. This is an appeal from the judgment entered pursuant to the verdict of a jury finding the defendant guilty of the crime of unlawful possession of marijuana, a narcotic drug. Defendant’s counsel makes two assignments of error in this court. In his first assignment of error, he claims that defendant’s automobile was illegally searched, and that the fruit of the illegal search, the marijuana discovered therein, was seized and improperly admitted into evidence during the trial. His second assignment of error claims prejudicial misconduct on the part of the prosecuting attorney during the trial of the case. Facts pertinent to the first assignment of error are as follows: At about 5:30 a.m. on January 18, 1967, Officer Clifford Hahn of the Wenatchee police department observed the defendant, Robert Montague, driving on Wenatchee Avenue with only one headlight on his motor vehicle. Upon being stopped and questioned by Officer Hahn, the defend ant was unable to produce either a valid operator’s license or a registration for the car. The defendant was taken to the police station and an arrest citation was issued charging him with two violations, namely, defective equipment and no operator’s license. He was unable to raise $34 bail, and after some discussion it was agreed that he would be released on his personal recognizance. Defendant then asked Officer Hahn to drive him back to his car, which request was granted, but, while enroute, Officer Hahn received a call on his car radio informing him that there was a warrant on file for defendant’s arrest on account of his failure to appear in police court on a prior traffic citation. The officer immediately returned defendant to the police station, and advised him that he would be released only upon furnishing bail. The police officer left the defendant at the police station and returned to the car for the dual purpose of checking the car registration and preparing the car for impoundment. Police procedure in Wenatchee required that, whenever a driver of an automobile was arrested and detained, his automobile would be removed from the street and placed in a public garage; that, preparatory to im-poundment, the car would be searched for valuables; and, if any valuables were found, they would be taken to the police station for safekeeping, where they would be itemized and listed on a “property card.” While engaged in making such search for valuables, Officer Hahn examined a brown paper bag on the floor of the car and found that it contained eight small plastic bags filled with the material which was later chemically analyzed and determined to be marijuana. The defendant claims that this constituted an illegal search of his car, and that the trial court erred in denying his motion to suppress the marijuana as evidence. The defendant first claims that Officer Hahn left the police station to return to the car while the defendant was making a telephone call to try to arrange bail, and that the officer, therefore, made his search without knowledge that it would be necessary to impound the car. The evidence, however, would warrant a contrary inference. After Officer Hahn returned to the car, he was in communication with the desk sergeant at the police station by car radio, and, while the evidence is silent with respect to whether they discussed the defendant’s ability to obtain bail, it is evident that Officer Hahn knew that the car would have to be impounded because he asked the desk sergeant to call the garage to send a wrecker to tow the car in. The primary issue in this case, therefore, is whether the search of an automobile is illegal when a police officer, following the routine inventory procedure prescribed by the police department, makes a search of an automobile which will have to be impounded and removed from the streets on account of the detention of the owner. So far as we can determine, this direct issue has been before this court on only one prior occasion. That was in State v. Olsen, 43 Wn.2d 726, 263 P.2d 824 (1953). The legality of search and seizure in that case was considered by the court under facts quite comparable to those in the instant case. There, as in the instant case, a traffic violation, for which the defendant was arrested, was committed in the presence of a police officer. Defendant was placed in jail and booked for negligent driving. While the contents of his car were being placed in custody for safekeeping by police officers, this being a routine procedure, the police discovered a pistol, burglary tools, a police badge, and a sap. The court held that these articles were properly admissible in evidence on the trial of felony charges subsequently filed against the defendant for unlawfully carrying a pistol in a vehicle without a license, and for unlawfully having burglary tools in his possession. In the 14 years that have elapsed subsequent to our decision in that case, we note that the identical search and seizure question, which was before the court in that case, has been considered by the appellate courts of several other states, and also by the federal courts. The question has been arising with increasing frequency during the past few years. The decisions which we have been able to find have all reached the same conclusion which we reached in State v. Olsen, supra, when the facts have been comparable. What is now frequently referred to as the inventory rule will not apply, however, and evidence of crime discovered during the taking of the inventory will be suppressed as evidence, unless there first be a lawful arrest. Miller v. State, 137 So.2d 21 (Fla. 1962). Also, in Williams v. United States, 170 A.2d 233 (D.C. Mun. App. 1961), the court refused to permit evidence of crime discovered during the taking of the inventory to be used in evidence following a valid arrest, where the court could find no reasonable grounds for the impoundment of the vehicle. Neither would this court have any hesitancy in suppressing evidence of crime found during the taking of the inventory, if we found that either the arrest or the impoundment of the vehicle was resorted to as a device and pretext for making a general exploratory search of the car without a search warrant. State v. Michaels, 60 Wn.2d 638, 374 P.2d 989 (1962); People v. Garrison, 189 Cal. App. 2d 549, 11 Cal. Rptr. 398 (1961). When, however, the facts indicate a lawful arrest, followed by an inventory of the contents of the automobile preparatory to or following the impoundment of the car, and there is found to be reasonable and proper justification for such impoundment, and where the search is not made as a general exploratory search for the purpose of finding evidence of crime but is made for the justifiable purpose of finding, listing, and securing from loss, during the arrested person’s detention, property belonging to him, then we have no hesitancy in declaring such inventory reasonable and lawful, and evidence of crime found will not be suppressed. This determination finds support not only in our prior decision, State v. Olsen, supra, but also in the reasoning set out in State v. Wade, 190 Kan. 624, 376 P.2d 915 (1962); St. Clair v. State, 1 Md. App. 605, 232 A.2d 565 (1967); People v. Manzi, 21 App. Div. 2d 57, 248 N.Y.S.2d 306 (1964), aff’g 38 Misc. 2d 114, 237 N.Y.S.2d 738 (1963); People v. Simpson, 170 Cal. App. 2d 524, 339 P.2d 156 (1959); People v. Ortiz, 147 Cal. App. 2d 248, 305 P.2d 145 (1956); People v. Ode-gard, 203 Cal. App. 2d 427, 21 Cal. Rptr. 515 (1962); People v. Garcia, 214 Cal. App. 2d 681, 29 Cal. Rptr. 609 (1963); People v. Prochnau, 251 Cal. App. 2d 22, 59 Cal. Rptr. 265 (1967); Heffley v. State, 83 Nev. 100, 423 P.2d 666 (1967); Cotton v. United States, 371 F.2d 385 (9th Cir. 1967). In Cooper v. California, 386 U.S. 58, 17 L. Ed. 2d 730, 87 Sup. Ct. 788 (1967), the defendant was lawfully arrested and his car was impounded under the provisions of California Health and Safety Code § 11611, authorizing a state officer making an arrest for violation of the narcotic laws to seize a vehicle used in the unlawful transportation of any narcotic, and to hold the car as evidence until a forfeiture be declared or a release of the car ordered. Pursuant to this statute, the accused person’s car was impounded and, a week later, was searched. A majority of the United States Supreme Court held that such search was reasonable and lawful. The majority in its opinion said, at 61: But the question here is not whether the search was authorized by state law. The question is rather whether the search was reasonable under the Fourth Amendment. Just as a search authorized by state law may be an unreasonable one under that amendment, so may a search not expressly authorized by state law be justified as a constitutionally reasonable one. Apropos to the reasonableness of the search, the Supreme Court said, at 61: The forfeiture of petitioner’s car did not take place until over four months after it was lawfully seized. It would be unreasonable to hold that the police, having to retain the car in their custody for such a length of time, had no right, even for their own protection, to search it. It is no answer to say that the police could have obtained a search warrant, for “[t]he relevant test is not whether it is reasonable to procure a search warrant, but whether the search was reasonable.” United States v. Rabinowitz, 339 U.S. 56, 66 [94 L. Ed. 653, 70 Sup. Ct. 430]. In Cooper, the impoundment of the car was expressly authorized under the factual situation before the court by the terms of the California statute. We do not, however, deem the existence of such a statute the indispensable nexus with which to connect the test of reasonableness of the impoundment of the car and its subsequent search to the factual situation in the case. This same question was explored in St. Clair v. State, supra. There was no Maryland statute or written regulation pursuant to which the police officers in that case impounded and searched the car. The accused person, however, was lawfully arrested and was unable to furnish bail. The car was, therefore, impounded, its contents were inventoried, and placed in the custody of the sheriff “because we were responsible for them.” The court said, at 1 Md. App. 613,-16: While Cooper thus makes it plain that a warrantless search of a vehicle may be reasonable without being incident to an arrest, unlike the factual situation in that case, appellant’s car was not required to be seized by State law at the time of his arrest. Neither did it constitute evidence of any crime, nor was it subject to a statutory forfeiture proceeding. That these factors need not necessarily be present to authorize a warrantless search of a motor vehicle properly in police custody where the circumstances show the search to be otherwise reasonable is nevertheless abundantly clear from the decisions. As the court observed in one such case, People v. Proch-nau, 59 Cal. Rptr. 265 (Cal. Dist. Ct. App. 1967): “The core of the matter is not whether the police officers acted without express authority in State law in impounding the car; it is whether its subsequent conduct was reasonable in the light of the constitutional guarantees with respect to the matter of search and seizure.” Thus, in Heffley v. State, 423 P.2d 666 (Nev. 1967), Heffley was arrested in his car in which he had a large number of guns in plain view on the back seat. Charged with unlawful possession of a pistol, he was taken to the police station, and thereafter, his vehicle was impounded by police, searched, and stolen articles discovered therein. The court held in effect that while the search could not be justified as incident to the arrest in light of Preston, nevertheless it was not constitutionally unreasonable under the circumstances. Noting that the police “had the responsibility to inventory the property, for if it later developed that Heffley owned the guns and the automobile they would be responsible for their safekeeping,” the court stated: “* * * If the search is for the purposes of inventory of personal effects and not exploratory, articles found as a result which supply the foundation for a reasonable suspicion on the part of the police are not subject to unlawful search and seizure. This is so because the police are in a place where they have a right and obligation to be, as in this case, when they find the objects of seizure. * * * “The police officer, when there is just cause, has a duty not only to impound a car from the public highway for its own protection, but also to inventory the contents so that they may be safeguarded for the owner. Such practice is deemed necessary to defeat dishonest claims of theft of the car’s contents and to protect the temporary storage bailee against false charges. * * * If, however, the policing conduct indicates that the intention is exploratory rather than inventory the fruits of that search are forbidden. * * * Unfortunately, distinguishing inventory from exploration may prove to be ambitious and imprecise. We can only say that each case must be determined upon its own facts and circumstances. “In this case from the time of seizure of the car until the inventory at the police station, the vehicle was in the lawful custody of the officers. In these circumstances the search without a warrant of defendant’s automobile could not be said to be 'unreasonable.’ It is only unreasonable searches that are prohibited by the Constitution. United States v. Rabinowitz, 339 U.S. 56, 70 S. Ct. 430, 94 L. Ed. 653 (1950).” In Cotton v. United States, 371 F.2d 385 (9th Cir. 1967), Cotton was accosted by police in an alley late at night while in his car with the lights out. He was arrested for disturbing “private places,” and removed from the scene of the arrest, after which his car was towed away to the police impound. As the arresting officer felt that “after arresting the man, I am responsible for the vehicle and the property in it,” the car was entered and examined by police, it thereby being ascertained that the car had been stolen. In the course of its opinion, in which it found no merit to appellant’s contention that the search of his vehicle was unconstitutional under the Fourth Amendment, the court said: “ * * * Cotton having been validly arrested and taken to the police station, the officer would have been derelict in his duty if he had left the car unattended in a dark alley in the middle of the night. The police have as much a duty to protect the property of a suspect as they have to protect the property of the rest of us, and that is what they did in this case by towing the car to the police impound. They also had a duty to keep a record of the property that they had impounded so that it could be returned to the suspect or to its owner in due course. For reasons stated below, we do not think that the mere opening of the door of the car for the purpose of making such a record was, under the circumstances, a search, but if it was, the circumstances under which it was done make that search an entirely reasonable one. Cf. Boyden v. United States, 9 Cir., 1966, 363 F.2d 551. The Constitution prohibits only unreasonable searches and seizures. United States v. Rabinowitz, 1950, 339 U.S. 56, 60, 70 S.Ct. 430, 94 L. Ed. 653.” It is only unreasonable searches which are prohibited by the Fourth Amendment. The determinative test, therefore, of the legality of the search is its reasonableness under all of the circumstances. What might be deemed a reasonable search of a motor vehicle without a warrant, might not apply to the search of a home, a store, or other similar property. It may be admitted that, in some cases, the court will be faced with difficulty in distinguishing between a reasonable and lawful inventory procedure and an unauthorized exploratory search. Heffley v. State, supra. This is a factual determination which must be made by the court so as to separate that which is reasonable from that which is unreasonable. Our review of the record in this case does not cause us to conclude that the trial court disregarded the defendant’s rights under the Fourth Amendment in admitting in evidence the marijuana which was found in the defendant’s car while it was being searched preparatory to impoundment. There was evidence which could induce the trial court to believe that the police were acting in good faith in removing the defendant’s car from the street, and that the search was made for the dual purpose of protecting its contents from undue risk during storage and protecting the police and the bailee from false claims of loss or theft. The record indicates that the police were attempting to deal fairly with the defendant on his first arrest. When he was unable to raise bail in the sum of $34, it was agreed that he could be released upon his personal recognizance. He was, as a matter of courtesy, furnished transportation from the police department back to his car. The trial court could properly consider these circumstances in determining whether the impoundment of the car was merely a device resorted to by the police to make an exploratory search without a warrant. The fact that evidence of a crime, separate and distinct from that for which defendant was initially arrested, was discovered during the course of a search’ is of no avail to the defendant. Such search, if lawful, does not render inadmissible the evidence of such unrelated crime in a subsequent prosecution therefor. People v. Ortiz, supra; St. Clair v. State, supra; Harris v. United States, 331 U. S. 145, 91 L. Ed. 1399, 67 Sup. Ct. 1098 (1947). The defendant’s second assignment of error is based upon prejudicial misconduct on the part of the prosecuting attorney during the trial. The defendant had traveled from Seattle to Wenatchee with a young woman during the hours immediately preceding his arrest. The state called this young woman as a witness and she testified to certain conduct and statements made by the defendant during the trip. The only part of the evidence which we find to be improperly presented to the jury was her testimony that the defendant had stopped alongside the road for more than an hour and that his conduct during this stop was ungentlemanly. On oral argument, the prosecuting attorney frankly admitted the impropriety of this evidence, and he had no excuse for presenting this evidence to the jury, except “to win.” We cannot approve the conduct of the prosecuting attorney, but under the facts of this case, we cannot find that the results of the impropriety were so prejudicial as to require a new trial. None of the evidence showing the defendant’s illegal possession of marijuana was in any way controverted except by the defendant’s plea of not guilty. He did not take the witness stand himself, and he presented no evidence except by one witness who testified to the time a telephone call was received. The jury’s verdict, therefore, could not have been influenced in any way by the prosecuting attorney’s conduct. The defendant has filed a pro se brief in addition to the brief of his counsel. We have carefully considered the pro se brief. Some of the assignments of error therein are identical with those in his counsel’s brief and have been already discussed. Some are without any basis of fact in the record, such as his claim that the prosecuting attorney commented on his failure to take the witness stand in his argument to the jury, and that the defendant was prejudiced by adverse publicity, requiring a change of venue in order to insure a fair trial. He claims that there was no evidence in the case that the material found by Officer Hahn in the plastic bags was sufficiently identified as marijuana. The record shows that George G. Ishii, a graduate chemist, employed as criminologist in the crime laboratory of the Seattle police department, examined the material both by high-power microscope and by chemical analysis and determined that the plant growth which he examined was marijuana, and so testified. It is the defendant’s position that RCW 69.33.220 (13) (formerly RCW 69.33.010(13)), excludes the stems of the plant from the definition of cannabis sativa, the scientific name of the plant commonly referred to as marijuana’ and that the failure of the witness to state that it was not the stem of the plant which he examined, made his identification insufficient. However, the expert testified that the material which he examined included “stems, leaf fragments and seeds.” This same issue was considered by this court in State v. Garcia, 69 Wn.2d 546, 558 n.2, 419 P.2d 121 (1966), and the court said that: If any parts of the contents of each can were narcotic portions of the plant Cannabis Sativa, the sale of the contents is a sale of narcotics. It appears to be of no consequence in the statutory definition of narcotic, for the purposes of this criminal statute, that other parts of the contents may be non-narcotic portions of the plant. It seems plausible that many sales may be of packages containing a mixture of narcotic and non-narcotic portions of the plant. The state made a prima facie case that the material in the plastic bags included marijuana. This was sufficient. The defendant states that he was not served with a warrant for arrest until 16 days after his arrest, and there was a delay of 24 days in his arraignment. The defendant was arrested by the Wenatchee police for defective motor equipment and no valid operator’s license on January 18, 1967. He was rearrested on the same day on a bench warrant for failure to appear in police court on a prior traffic offense. The information charging him with illegal possession of marijuana was filed on January 19, 1967. He was served with a warrant of arrest on the later charge on February 2, 1967. He was arraigned on that charge on February 10, 1967. The record is silent with respect to the disposition of the traffic charges, and the length of his detention on these charges. We do not find any constitutional rights of the defendant impaired as a result of either the delay in the service of the warrant for arrest on the felony charge or the delay in his arraignment on that charge. State v. Lane, 37 Wn.2d 145, 222 P.2d 394 (1950) ; State v. Manning, 57 Wn.2d 327, 356 P.2d 721 (1960); State v. Thompson, 58 Wn.2d 598, 364 P.2d 527 (1961); Draper v. Rhay, 242 F. Supp. 829 (E. D. Wash. 1964). We have considered the remaining assignments of error in defendant’s pro se brief and find no merit in any of them. The defendant has also presented to this court a petition for a writ of habeas corpus. It is claimed that the fixing of bail by the trial court in the sum of $5,000 pending his appeal was violative of his rights under the Eighth Amendment. We do not deem such bail excessive. The judgment will be affirmed, and the petition for the writ will be denied. Finley, C. J., Weaver, Rosellini, and McGovern, JJ., concur. May 10, 1968. Petition for rehearing denied. Judge Ward is serving as a judge pro tempore of the Supreme Court pursuant to Art. 4, § 2(a) (amendment 38), state constitution.

Dolliver, J. Defendants Sisters of Providence in Washington, Inc., St. Peter Hospital, and several hospital administrators seek review from a trial judgment in a wrongful termination suit in favor of plaintiff Timothy Baldwin. The Sisters of Providence operate St. Peter Hospital in Olympia. In 1981, plaintiff became employed at St. Peter as a respiratory therapist. Under the terms of the employee manual, St. Peter may discharge its employees for "just cause", which is defined as "any gross violation of conduct . . ." The manual also provides a 4-step grievance procedure for resolving employee complaints. Under the procedure, the grievance first goes to the employee's supervisor, the department head, the personnel director, and finally to the hospital administrator. On January 30, 1985, a female patient reported she had been sexually molested on January 29. The assailant was described as a fairly tall man having a long beard, long dark hair pulled back in a ponytail, and wearing a blue jacket. The nursing supervisor thought the assailant may have been the plaintiff because the description matched and because he was the only respiratory therapist on duty at the time of the incident. Respiratory therapists are the only employees who wear blue jackets. The supervisor reported this to the director of respiratory therapy, the codirectors of nursing services, and the patient's physician. When plaintiff arrived for work on January 30, he was told there was a problem involving him, and he was not to work that evening, although he would be paid for the shift. The next morning, the director of respiratory therapy informed his supervisor of the complaint. An investigative team of administrators was organized. The team was comprised of the two codirectors of nursing services, the director of personnel, and Darrell Stewart, an assistant to the hospital administrator. On February 1, a meeting was held at which plaintiff was informed of the complaint and the investigation. An investigation ensued in which hospital records, including the female patient's medical history, and security records were reviewed and hospital personnel were interviewed. On February 22, plaintiff was fired. On March 18, 1985, plaintiff filed suit alleging, among other theories, breach of an implied covenant that his discharge would be based upon just cause. The trial court denied a defense motion for summary judgment and for a directed verdict based upon plaintiff's failure to exhaust the grievance procedure. Both parties submitted proposed jury instructions as to the applicable law on the breach of contract theory. Defendants proposed two instructions. One instruction proposed by defendants defined just cause as a good faith, fair and honest reason supported by substantial evidence. Another proposed instruction was similar, but added the objective requirement that the just cause determination be reasonable. The trial court declined to give either instruction and drafted its own instruction which reads in pertinent part as follows: You are instructed that St. Peter Hospital had the right to terminate the plaintiff, for any reason, at any time, unless the plaintiff can prove that St. Peter Hospital had created an atmosphere of job security and fair treatment with promises, found in employment manuals or policies, of specific treatment in specific situations whereby plaintiff was induced thereby to remain on the job and not actively seek other employment. If you find plaintiff has sustained his burden of proof, then plaintiff's employment could only be terminated for just cause and the burden of proof shifts to defendant to prove by a preponderance of the evidence that on February 22, 1985, plaintiff was terminated from his employment for just cause. "Just cause" means that under the facts and circumstances existing at the time the decision is made, an employer had a good, substantial and legitimate business reason for terminating the employment of a particular employee. In closing argument, plaintiff's attorney relied heavily on this instruction. The jury, in answer to special interrogatories, found (1) plaintiff was excused from resorting to the grievance procedure because it would be futile, (2) the employment contract contained a requirement that discharge would be based upon just cause, and (3) the hospital did not have just cause in discharging plaintiff. The trial court denied a defense motion for judgment notwithstanding the verdict and entered judgment in favor of plaintiff. The defendants appealed directly to this court. I Generally, contractual grievance procedures must be exhausted before parties resort to the courts. Tombs v. Northwest Airlines, Inc., 83 Wn.2d 157, 162, 516 P.2d 1028 (1973); Lew v. Seattle Sch. Dist. 1, 47 Wn. App. 575, 577, 736 P.2d 690 (1987). There are exceptions to the exhaustion doctrine based upon considerations of fairness or practicality. See South Hollywood Hills Citizens Ass'n v. King Cy., 101 Wn.2d 68, 74, 677 P.2d 114 (1984). One such exception is recognized where pursuing the available remedies would be futile. Moran v. Stowell, 45 Wn. App. 70, 77, 724 P.2d 396, review denied, 107 Wn.2d 1014 (1986). Generally, futility addresses a showing of bias or prejudice on the part of discretionary decisionmakers. See Orion Corp. v. State, 103 Wn.2d 441, 458, 693 P.2d 1369 (1985). The Superior Court denied defense motions for summary judgment and directed verdict based upon plaintiff's failure to show the futility of exhausting the contractual grievance remedies. Defendants do not challenge that the first three steps of the grievance process were futile as plaintiff's supervisor, department head, and the personnel director were actively engaged in the investigation. They do challenge plaintiff's failure to pursue the fourth step and take the grievance to the hospital administrator. First, defendants contend the Superior Court misplaced the burden of proof on summary judgment. On a motion for summary judgment, the moving party has the burden of showing there is no genuine issue of material fact, but this does not relieve the nonmoving party of the burden of producing evidence that would support a genuine issue for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986); Grimwood v. University of Puget Sound, Inc., 110 Wn.2d 355, 359, 753 P.2d 517 (1988). The nonmoving party must set forth specific facts showing a genuine issue and cannot rest on mere allegations. Anderson, at 256; Grimwood, at 359-60. In denying the defense motion, the Superior Court stated: On this record, the defendants have not carried their burden of showing that there are no issues of fact with respect to the possible futility of plaintiff's efforts to exhaust contractual remedies. Defendants do not point to any specific pleadings, affidavits, or depositions showing the absence of evidence on the issue of futility. See Celotex Corp. v. Catrett, 477 U.S. 317, 323, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986); Seven Gables Corp. v. MGM/UA Entertainment Co., 106 Wn.2d 1, 12-13, 721 P.2d 1 (1986). Therefore, the Superior Court was correct in its determination that defendants did not meet their initial burden of showing there were no issues of fact regarding futility. Defendants further contend the Superior Court erred in not directing a verdict in defendants' favor on the issue of futility. In considering a motion for a directed verdict, the court must view the evidence in the light most favorable to the nonmoving party, and the denial of the motion should be reversed only if no evidence or reasonable inference exists which would be sufficient to sustain a verdict for the nonmoving party. Cherberg v. Peoples Nat'l Bank, 88 Wn.2d 595, 606, 564 P.2d 1137 (1977). In the plaintiff's case in chief, plaintiff testified he felt taking his grievance to the hospital administrator would be futile because the assistant administrator was involved in the investigation as a representative of the administrator. The record shows the assistant was regularly delegated duties by the administrator, although there is no allegation the assistant was actually pursuing the investigation on behalf of the administrator. Plaintiff does not allege the hospital administrator was personally involved in the investigation or had predetermined the case. On this testimony, defendants made a motion for a directed verdict. The trial court denied the motion because there was an inference of bias based upon the involvement of the assistant administrator in the investigation. Defendants cite one case where the subjective belief the available procedures would be futile was not sufficient to invoke the exception. See Smith v. General Elec. Co., 63 Wn.2d 624, 625-27, 388 P.2d 550 (1964). The principle that a subjective belief of futility is sufficient to invoke the exception would conflict with the strong bias toward requiring exhaustion in Washington. However, aside from plaintiff's subjective belief, the evidence also indicates (1) a close working relationship between the administrator and the assistant administrator, (2) a situation where the first three persons in the grievance process were actively involved in the decision to fire plaintiff, and (3) a particularly inflammatory and sensitive incident which resulted in plaintiff's termination. Viewing this evidence and the reasonable inferences therefrom in the light most favorable to plaintiff, a genuine issue of bias appears to be raised. Therefore, the Superior Court was correct in denying the defense motion for a directed verdict. II The defendants assert the trial court erred in placing the burden of persuasion on defendants to prove plaintiff was dismissed for just cause. We concur; the instruction is in error. The allocation of the burdens of persuasion and production in breach of employment contract cases is one of first impression in Washington. Defendants rely in large part on Thompson v. St. Regis Paper Co., 102 Wn.2d 219, 685 P.2d 1081 (1984) to support the position that the burden of persuasion is at all times with the employee. Thompson modified the common law at will doctrine to provide protection for employees (1) who rely on employer promises of specific treatment in employee manuals and (2) who are discharged for reasons contravening public policy. However, the Thompson court did not reach the issue of allocation of burdens of persuasion and production as to the first exception, and the court's language was ambiguous regarding the allocation of burdens as to the second exception. The court stated: The employee has the burden of proving his dismissal violates a clear mandate of public policy. Thus, to state a cause of action, the employee must plead and prove that a stated public policy, either legislatively or judicially recognized, may have been contravened . . . However, once the employee has demonstrated that his discharge may have been motivated by reasons that contravene a clear mandate of public policy, the burden shifts to the employer to prove that the dismissal was for reasons other than those alleged by the employee. Thompson, at 232-33. It is not clear whether the burden of production or persuasion shifts to the employer. In statutory employment discrimination actions, the employee initially must show a prima facie case of discrimination after which the burden of production shifts to the employer to show a legal excuse exists for the termination, but the burden of persuasion remains at all times with the employee. See, e.g., Texas Dep't of Comm'ty Affairs v. Burdine, 450 U.S. 248, 67 L. Ed. 2d 207, 101 S. Ct. 1089 (1981); Grimwood v. University of Puget Sound, Inc., supra; Hollingsworth v. Washington Mut. Sav. Bank, 37 Wn. App. 386, 681 P.2d 845, review denied, 103 Wn.2d 1007 (1984). It would be "counterintuitive" to place a lighter burden on employers faced with wrongful termination claims than on employers charged with violating statutory discrimination laws. Duke v. Pfizer, Inc., 668 F. Supp. 1031, 1040 (E.D. Mich. 1987). Some jurisdictions have adopted the allocation of burdens in employment discrimination cases for wrongful termination actions. See Duke v. Pfizer, Inc., supra; Schmidly v. Perry Motor Freight, Inc., 735 F.2d 1086 (8th Cir. 1984); Crosier v. United Parcel Serv., Inc., 150 Cal. App. 3d 1132, 198 Cal. Rptr. 361 (1983); Pugh v. See's Candies, Inc., 116 Cal. App. 3d 311, 171 Cal. Rptr. 917 (1981). This allocation of burdens comports with general burden of proof rules requiring the plaintiff to prove all elements of the cause of action. See Western Wash. Laborers-Employers Health & Sec. Trust Fund v. Merlino, 29 Wn. App. 251, 255, 627 P.2d 1346 (1981); People's Mortgage Co. v. Vista View Builders, 6 Wn. App. 744, 747, 496 P.2d 354 (1972). Baldwin relies on cases from other jurisdictions to support the contention the burden of persuasion rests with the employer to show a proper excuse for the discharge. See, e.g., Bosche v. Lear Petroleum Exploration, Inc., 816 F.2d 1460 (10th Cir. 1987); Phipps v. Clark Oil & Ref. Corp., 396 N.W.2d 588 (Minn. Ct. App. 1986), aff'd, 408 N.W.2d 569 (Minn. 1987); Patton v. J.C. Penney Co., 75 Or. App. 638, 707 P.2d 1256 (1985), rev'd on other grounds, 301 Or. 117, 719 P.2d 854 (1986); Advance Ross Elees. Corp. v. Green, 624 S.W.2d 316 (Tex. Ct. App. 1981), cert. denied, 458 U.S. 1108 (1982); Howell v. Kelly, 534 S.W.2d 737 (Tex. Civ. App. 1976). We do not believe employers should face a greater burden in breach of contract claims than they face in discrimination actions especially in light of the greater protections the law attempts to provide alleged victims of discrimination. Duke v. Pfizer, Inc., supra at 1040. Placing the burden of persuasion on the party asserting breach will tend to maintain the balance between the employer's interest in running its business and the employee's interest in continued employment sought to be achieved by Thompson. Thompson v. St. Regis Paper Co., supra at 227. The shift of the burden to the employer to prove just cause could encourage employers to remove all such language from handbooks to retain effective control of the workplace. Thompson, at 229. While as an evidentiary matter, the employer bears the burden of production to avoid a directed verdict in the employee's favor, the ultimate burden of persuasion rests with the employee. This is consistent with the allocation of burdens in statutory discrimination cases. Furthermore, a court rule on the allocation of burdens would alleviate any practical problems in formulating understandable jury instructions when, as is often the case, statutory and common law claims are raised in the same suit. Thus, for common law termination claims, we adopt the rule we set forth in Grimwood v. University of Puget Sound, Inc., 110 Wn.2d 355, 753 P.2d 517 (1988) for statutory termination claims: Once a plaintiff has made out a prima facie case, the employer must articulate a legitimate, nondiscriminatory reason for termination. The employer's burden at this stage is not one of persuasion, but rather a burden of production. To go forward, the employer need only articulate reasons sufficient to meet the prima facie case. . . . Once the employer fulfills his burden of production, to create a genuine issue of material fact the plaintiff must satisfy his ultimate burden of persuasion and show that the employer's articulated reasons are a mere pretext for what, in fact, is a discriminatory purpose. Grimwood, at 363-64. III Defendants contend the Superior Court erred in instructing the jury on the standard for reviewing the employer's determination of just cause. The Superior Court's instruction was as follows: "Just cause” means that under the facts and circumstances existing at the time the decision is made, an employer had a good, substantial and legitimate business reason for terminating the employment of a particular employee. Defendants contend this instruction was in error because it allowed the jury to make an independent assessment of just cause. Defendants' proposed instruction incorporates both a subjective and objective standard to review the employer's just cause determination. The proposed instruction reads as follows: "Just cause" is defined as a fair and honest cause or reason, regulated by good faith on the part of the party exercising the power. A discharge for "just cause" is one based on facts that (1) are supported by substantial evidence and (2) are reasonably believed by the employer to be true and also (3) is not for any arbitrary, capricious, or illegal reason. The Superior Court rejected this instruction because it felt any reference to "good faith" was inconsistent with this court's rejection in Thompson v. St. Regis Paper Co., 102 Wn.2d 219, 685 P.2d 1081 (1984) of implying good faith into every employment contract. There is, however, no inconsistency in rejecting an implied covenant of good faith as part of every employment contract and allowing good faith to serve as part of the standard to review whether a term placed into a contract by the employer was breached. As the Oregon Supreme Court has noted, two issues arise when dealing with a just cause provision, "(1) what is the meaning of just cause; and (2) who makes the requisite factual determination." Simpson v. Western Graphics Corp., 293 Or. 96, 100, 643 P.2d 1276 (1982). In this case, the parties agree sexual abuse of a patient is just cause for termination. An instruction was given to this effect. Therefore, the only issue is who makes the requisite factual determination of just cause. This question has not been decided by this court. In addressing this issue the Oregon Supreme Court stated: [Tjhere is a just cause provision, but no express provision transferring authority to make factual determinations from the employer to another arbiter. Neither is there reason to infer that such a meaning was intended by the terms of the Employee Handbook. . . . [The handbook] is a unilateral statement by the employer of self-imposed limitations upon its prerogatives. . . . [T]he meaning intended by the drafter, the employer, is controlling and there is no reason to infer that the employer intended to surrender its power to determine whether facts constituting cause for termination exist. ... In the absence of any evidence of express or implied agreement whereby the employer contracted away its fact-finding prerogative to some other arbiter, we shall not infer it. Simpson, at 100-01. In Thompson we posited a similar position in rejecting a good faith and fair dealing exception to the at-will doctrine. [WJhile an employer may agree to restrict or limit his right to discharge an employee, to imply such a restriction on that right from the existence of a contractual right, which, by its terms has no restrictions, is internally inconsistent. Thompson, at 228. Similarly, an employer's agreement to restrict discharges to those supported by just cause should not be followed by a further judicial implication which takes the determination of just cause away from the employer. Cf. Brady v. Daily World, 105 Wn.2d 770, 776, 718 P.2d 785 (1986) (question of fact whether employer had sufficient evidence to support dismissal due to intoxication). Plaintiff argues defendants' reliance on Simpson is misplaced due to a later Oregon case, Fleming v. Kids & Kin Head Start, 71 Or. App. 718, 693 P.2d 1363 (1985). However, Fleming dealt with the meaning of just cause, not with who makes the factual determination. Fleming, at 721. Additionally, Simpson has subsequently been endorsed. See Frazier v. Minnesota Mining & Mfg. Co., 82 Or. App. 328, 331, 728 P.2d 87 (1986), review denied, 303 Or. 74, 734 P.2d 354 (1987). The reasoning of the Oregon Supreme Court is persuasive. The employer unilaterally decided to place the restriction of just cause upon its termination decisions. This just cause provision, by its terms, had no restrictions. However, the employer should not be allowed to make arbitrary determinations of just cause. The balance sought to be achieved in Thompson would conflict with such a view, and defendants do not argue this position. As defendants argue, a standard which checks the subjective good faith of the employer with an objective reasonable belief standard strikes a balance between the employer's interest in making needed personnel decisions and the employee's interest in continued employment. See Thompson, at 232. A contrary result could encourage employers to remove such provisions from their handbooks and render the inroads made by Thompson ineffectual. We hold "just cause" is a fair and honest cause or reason, regulated by good faith on the part of the party exercising the power. We further hold a discharge for "just cause" is one which is not for any arbitrary, capricious, or illegal reason and which is based on facts (1) supported by substantial evidence and (2) reasonably believed by the employer to be true. The instruction of the trial court was in error. Plaintiff sets great store in the argument that under either the trial court's instruction or the proposed instruction "just cause" would not have been found by the jury. While this may be so, it is highly speculative. Furthermore, whatever the jury does, it ought to do under proper instructions. They were not given in this case. Reversed. Callow, C.J., and Utter, Dore, Pearson, Durham, and Smith, JJ., concur. Brachtenbach and Andersen, JJ., concur in the result.

The opinion of the court was delivered by Gordon, J. This action was brought by the respondent city to recover damages for deceit and misrepresentation of the appellant in the sale of a water and light plant, the purchase price of which was $1,750,000. The jury found for the respondent in the sum of $787,500, and from the judgment entered upon this verdict and the order of the superior court denying a motion for a new trial, an appeal has been taken. Fraud is relied upon as the basis of plaintiff’s cause of action. It is not based upon anything contained in the contract—upon any covenant or warranty therein contained—but it goes beyond the contract, and sets up false representations in regard to the character, extent and value of the property sold, and further alleges that the appellant fraudulently and corruptly induced and employed the officers of the city and the president of the city council to forego any investigation or examination of the character, condition and value of the property purchased; that by reason of such corrupt inducement and employment the respondent was prevented from “making any investigation and examination of the sources of water supply, of the value, character and extent of the said property so purchased from defendant.” Damages were laid in the complaint at $1,000,000. The answer was a general denial of the allegations of misrepresentation and fraud, and alleged that the city by its proper officers and agents made a full examination of the property embraced within the purchase and for the purpose of fully ascertaining the character, condition and value thereof, employed one Rudolph Hering, a competent and experienced civil and hydraulic engineer, and that said Hering made a full report thereon to the city council, and that the members of the council had full opportunity at all times to make such examination and inspection of the property and everything connected with it as fully as they or any one of them might desire; alleges that the city purchased the property sold to it by appellant, relying upon the knowledge of its officers, agents and engineers employed by it to make an examination thereof, and not in reliance upon any statement or representation of any kind made by the appellant to respondent. In its reply the city admits that it employed the said Hering and that he made some examination of the property, and “that he made a report thereof to the city council, and alleges that he relied entirely upon the representations concerning all matters in the said report, made to him by the defendant, its agents, servants and employees, and that he made no other examination, but denies that the report contained full information of the kind, character and situation of the property, including the sources of water supply, . . and denies that plaintiff purchased the property relying upon the knowledge of its officers, agents, employees and engineers employed by it to make an examination thereof.” A preliminary question is presented by the motion of respondent’s counsel to strike a so-called “Abstract of Evidence, Exhibits,” etc., being a printed book containing something over 500 pages, which the appellant has filed in this court. The so-called “abstract” was prepared for the purpose of facilitating the labors of the court and with a view to condensing the record, but the motion must prevail for the reason that it is no part of the record and has no place in the proceedings under the statute and rules of this court. The lower court, in submitting the case to the jury, restricted their consideration of it in so far as misrepresentation is charged to four specific questions of fact, and withdrew all others from their consideration. Those submitted were: “1. Whether, before the sale, defendant made any representations to plaintiff relative to the quantity of water actually flowing from Thomas and Patterson springs. “ 2. As to the quantity of iron pipe then laid. “3. As to the quantity of land at station ‘A.’ “4. As to the value of the property sold.” The court also submitted the question of whether “ the defendant and the president of the city council of the city of Tacoma entered into collusion for the purpose of defrauding the city, and whether the defendant procured the said president of the council to act for and on its behalf instead of on behalf of the city, as his official duty required.” The court further charged: “I instruct you, that all other alleged misrepresentations charged in the complaint are withdrawn from your consideration, and that if the plaintiff recover at all it must be on the ground of misrepresentations in these, or in some one of these, respects.” Counsel for the city, in his elaborate and exhaustive brief, has presented the case in all respects as if the consideration of the jury had not been so restricted, and he has also treated certain offers of evidence made and rejected upon the trial as if the proof had actually been made and received. We have frequently held that upon appeal from a judgment in a particular case this court can only consider errors complained of by the appellant, and, in the absence of a cross-appeal, cannot examine the record for the purpose of determining alleged errors or rulings of which the respon dent complains. Glenn v. Hill, 11 Wash. 542 (40 Pac. 141); Langert v. David, 14 Wash. 389 (44 Pac. 875); Pepperall v. City Park Transit Co., 15 Wash. 176 (45 Pac. 743). A great many errors have been assigned in the brief of counsel for the appellant, but the conclusion which we have reached regarding two of them renders it unimportant that the others complained of should be considered. At the conclusion of the evidence on the trial below, the appellant moved for a non-suit upon the ground that the plaintiff had failed to prove a sufficient cause for the jury. It also moved for a new trial, which motion was based upon various grounds, and^ among others, “ insufficiency of the evidence to justify the verdict.” The ruling of the lower court denying the motion for non-suit, and the subsequent overruling of the motion for a new trial, present a single question. Before proceeding to a discussion of the evidence, we may here observe that a municipal corporation has a right to rely on the good faith and loyalty of its officers; that such officers owe to their municipalities the utmost degree of good faith, and that it is their duty at all times to use their best judgment in protecting the interests of the municipalities whose officers they are, and a person dealing with such officers is conclusively presumed to know the extent of the power and authority which the law has conferred upon the officer with whom he deals, and is also presumed to know that the law exacts and requires of such officer the utmost good faith and loyalty to such municipality. But, subject to the limitation above noticed, the rule applicable to the contracts of municipal corporations is, we think, the same as that applicable to the contracts of individuals; in other words, where the con tract entered into is within the scope and extent of the power and authority conferred by law on the officer, and no question of power or authority is involved, the rule applicable to that contract is the rule that is common to all contracts, and in an action by a municipal corporation founded upon fraud there can be no recovery unless the evidence to substantiate the fraud charged is, under the general rules of law as to the sufficiency of evidence, sufficient to support a verdict. The rule is thus stated in Argenti v. City of San Francisco, 16 Cal. 256: “ Contracts of corporations, whether public or private, stand on the same footing with the contracts of natural persons, and depend on the same circumstances for their validity and effect.” And in Baird v. Mayor of New York, 96 N. Y. 593, it is said: “No different rule prevails in respect to the contracts of corporations than that applicable to the contracts of private individuals, and we must determine the rights involved in this action by the light of the same principles which experience has shown to be salutary in other cases.” The cases of People v. Fields, 58 N. Y. 491, and Hume v. United States, 132 U. S. 406 (10 Sup. Ct. 134), cited and most strongly relied upon by respondent’s counsel, are not in conflict with the rule above stated. In the first of these cases the act of the comptroller of the city of New York which was pleaded as a payment, etc., was held by the court to be an act beyond the power of that officer. The court say: “ The payment was made and received without any lawful power in the comptroller to make it. The defendant is chargeable with knowledge of this. It was a payment by an agent, who had no authority, as such, to make it.” In Hume v. United States, supra, the court was dealing with a contract which it decided that no man in his senses, not under delusion, would make, on the one hand, and which no fair and honest man would accept on the other; and the principles governing that case and those involved in the case at bar are not analogous. Nor was there anything decided in Tacoma Light & Water Co. v. Tacoma, 13 Wash. 115 (42 Pac. 533), which militates against the view herein expressed. The language made use of in that case, and which is cited by counsel, viz., “ The appellant knew that it was dealing with a municipal corporation, and was bound to know that a different rule obtains in such cases from that which would obtain were it between individuals, and to know that the city officers and council could only make the purchase as authorized by the electors of the city, and that they could not bind the city by agreeing to take any less property, or any other property, than that which was embraced within the terms of the ordinance as submitted and passed upon,” relates to the power of the officers to bind the city beyond the general scope of their authority, and was not intended to, and does not, decide that “'a different rule obtains ” in the case of an authorized contract made by the officers of the city and a contract made by an individual. Of course, if one who deals with such an officer colludes with him and thereby procures him to violate his duty, such action becomes a fraud upon the corporation, but, on the other hand, persons who deal with such public corporations through the proper officers and who observe good faith and make use of no unlawful means or corrupt practices, are not accountable for a failure or neglect of such officers to discharge their duties to the corporations whom they serve, but in such case, the city or other municipal corporation must look to its own officers, and not to the parties so dealing with them. In this case the appellant had a right to fix its own price upon its property and was not obliged to sell it for less than the price it saw fit to place upon it. A representation, to be actionable, must be made with the intention that it should be acted upon by the party to whom it is made, and it must be made under such circumstances as would justify a reasonably prudent man in relying upon it, and, generally speaking, where the means of knowledge is at hand and accessible, if the purchaser does not avail himself of these means, he cannot be heard to complain in a court of law that he was deceived by the seller’s misrepresentations, or, as was said in Washington Central Imp. Co. v. Newlands, 11 Wash. 214 (39 Pac. 367): “ Parties must exercise ordinary business sense, and the faculties which are given to them for the purpose of transacting business; and that they cannot call upon the law to stand in loco parentis to them in the ordinary transactions of business and their ordinary dealings with their fellow men. ... If people having eyes refuse to open them and look, and having understanding refuse to exercise it, they must not complain, when they accept and act upon the representations of other people, if their venture does not prove successful. Written contracts would become too unstable if courts were to annul them on representations of this kind.” So far as the facts in this case are concerned there is little dispute and few contradictions. In disposing of the objection that the verdict and judgment are against the evidence, we recognize the rule to be that if the verdict has any substantial evidence in its support, it ought not to be set aside for the reason merely that in the opinion of the appellate court there was a greater amount of evidence on the other side. Dillon v. Folsom, 5 Wash. 439 (32 Pac. 216). “But we do not understand the law to he that a verdict should be set aside only in those cases where there is no testimony whatever to sustain it. . . If, on due consideration of the evidence, it appears that the verdict is not supported by any substantial proofs, it ought to be promptly and unhesitatingly set aside, and a new trial ordered.” Pederson v. Seattle, etc., Street Ry. Co., 6 Wash. 206 (33 Pac. 351); Guley v. Northwestern Coal, etc., Co., 7 Wash. 491 (35 Pac. 372); Comegys v. American Lumber Co., 8 Wash. 661 (36 Pac. 1087); Furth v. Snell, 6 Wash. 542 (33 Pac. 830). Where an issue of fraud is involved in any case, direct and positive proof is not required to sustain it, but circumstances from which the inference of fraud is natural and irresistible need only be shown. Millar & Co. v. Plass, 11 Wash. 237 (39 Pac. 956). But, while the issue of fraud may be sustained by circumstantial as well as by direct and positive proof, it cannot be established by strained inferences, or rest upon conjecture merely. “Fraud will not be presumed, and must be established by proof either direct or circumstantial. If by the latter, the circumstances relied upon must be such as to reasonably consist only with the intent to defraud, and to be in some degree inconsistent with an honest intent.” Roberts v. Washington National Bank, 11 Wash. 559 (40 Pac. 225). The court of appeals of New York in Baird v. Mayor of New York, 96 N. Y. 593, say: “In the case of Kingsley v. City of Brooklyn (78 N. Y. 215), it was said by Judge Millek, : ‘ Allegations of fraud against public officials, without proof of facts establishing their, guilt, are of but little avail in avoid ing a contract in a court of law. To set aside a contract on any such ground, and to justify a court in holding, as matter of law, that it is void, the proof should be explicit, clear and conclusive.’ It was said by Judge Finch, in the case of Schultz v. Hoagland et al. (85 N. Y. 467): ‘ . . . It is seldom, however, that it can be directly proved, and usually is deducted from other facts which naturally and logically indicate its existence. Such facts, nevertheless, must be of a character to warrant the inference. It is not enough that they are ambiguous and just as consistent with innocence as with guilt. That would substitute suspicion as the equivalent of proof.’ ” As already noticed, the court restricted the consideration of the jury to four questions of alleged misrepresentation, namely, the quantity of water actually flowing from Thomas and Patterson springs, the quantity of pipe then laid, the quantity of land at station A, and the value of the property sold. As to the first of these, it is the contention of the city that for the purpose of inducing the plaintiff to purchase the property at the price named, the appellant, by its officers, servants and employees falsely and fraudulently represented to the plaintiff (city), its agents and officers, that the permanent daily flow of water from Thomas and Patterson springs was not less than 10,000,000 gallons. These springs were one of the sources of supply on the line of projected extension of the water system, and it was expected by the city that by reason of their location the water from these springs would be sufficient to supply by gravity the upper or higher service of the city — being the most elevated portions of the city. As to the second question submitted, it is the contention of the city that the appellant represented to its officers and engineers that the city was to receive 66.14 miles of pipe in the distributing system, whereas in truth and in fact, the city only received 53-J miles, making a loss of 12i miles of pipe laid. As to the third question submitted, it is the contention of the city that the quantity of land at station “A” was represented to the officers of the city as containing 8.16 acres, whereas, in truth and in fact, the quantity of land actually received was .816 of an acre. The remaining question relates to representations concerning the value of the property, and can be more appropriately considered in connection with the charge of bribery and corruption of the president of the city council. The record discloses that as early as the year 1891 the question of the advisability of the city’s owning its own water plant was a subject of discussion, both through the columns of the daily press of the city and otherwise. The sentiment apparently gained favor with the people, so much so that at the spring election in the city for the year 1892 (at which time Harris A. Corell was elected to the council), it was incorporated in the platform of the political party and made an issue during the campaign. Mr. Corell became president of the council and was the officer and agent of the city, whom, it is alleged, was bribed and corrupted in office by the appellant. Prior to the time of such election, a committee of citizens had been appointed under the preceding city administration for the purpose of examining and reporting to the council upon the practicability and feasibility of the city’s constructing and operating an independent system, and a great deal of time and some considerable money had been expended in that connection. Some time during the spring or summer of 1892 the council of the city entered into negotiations with the appellant concerning the purchase of the plant in question. After receiving from it a schedule or list of its property purporting to show the character, condition and extent of its plant, the council authorized its fire and water committee (to whom it had entrusted the detail involved in the transaction) to employ a competent hydraulic engineer for the purpose of making an examination of the water plant and system then owned by the appellant and to report the result of such examination to the council, also to report as to the advisability of the city’s purchasing said waterworks, or of constructing an independent system to be owned and operated by the city. In accordance with the authority conferred by the council, Rudolph Hering was employed as such engineer. In this connection it may be said that Mr. Hering is conceded by counsel to be an expert hydraulic engineer, who stands at the head of his profession in the United States, and there is nothing in the record tending to throw discredit or suspicion upon his work, or the manner in which he discharged his duties. Mr. Hering arrived in Tacoma early in September, 1892, and proceeded at once to an examination of the appellant’s plant and water works, and otherwise to discharge the service for which he had been employed. Having completed such examination he reported to the mayor and council of the city on the 22d of October, 1892. Five hundred copies of this report were ordered and directed to be printed by the council. The report comprises about forty printed pages, and treats exhaustively of the entire subject, including the condition, character, extent and value of the system of water works then owned and operated by the appellant company. In said report he estimates the daily capacity of the different springs and other sources of supply. His estimate of the daily capacity of Thomas spring is placed at 5,000,000 gallons. He states that this estimate is based on “ careful gauging, and in part upon an estimate made by Mr. George H. Sellers, chief engineer of the light and water company, and substantially verified by me during the low flow of the present year.” Of Patterson spring the report says: “From a careful study I have concluded that it will be safe to estimate upon a yield of 5,000,000 gallons from the Patterson spring,” etc. The deposition of Mr. Hering was taken and this report was made a part of his deposition. In this connection, we should say that Thomas and Patterson springs were not at that time a part of the system as then in operation, but were available sources of supply along the line of a projected extension. In answer to a question propounded by respondent's counsel, Mr. Hering stated that he “ made a personal examination of the plant so far as it was exposed to view on the surface;” that he “did not rely upon any statements made” to him by any officers or agents of the appellant company where he “had means of verifying them,” but did rely to some extent on statements made to him by Hosmer, Hill and Sellers (officers of the appellant company), “in making up estimates of actual disbursements for the cost of different parts of the work, where they were under ground or not accessible.” Being asked whether, in making his examination, he was influenced hy any representations of the appellant, or caused thereby to exercise a greater or less degree of care than he otherwise would have done, he answered, “ I was not influenced by any such representations to modify my conclusions which the observed fact and the investigation of the engineering features indicated to me. They did not cause me to exercise either a greater or a less degree of care than I would have otherwise given the subject,” and again, “ I did make such examinations as I believed were entirely sufficient and safe for the purpose of the advice I was employed to give.” His attention being directed to the shortage claimed in the flow of these springs, he says, “ I know of no reason at this time why I should change my recommendations made in my report. The assertion that Patterson springs, after gauging by the city officers, have not yielded the amount stated in my report . . . would not change my general recommendation. . . . Having myself actually observed approximately the quantities of flow as stated in my report and being aware that this flow represented practically a minimum, owing to the end of the just passed dry season, I should now suppose that much of the water then apparent had been lost by digging up the ground and breaking the impervious strata, which operation I saw in part going on at the time of my visit . . .” And again he says, “ The character of Thomas and Patterson springs required for their utilization the direction and supervision of intelligent and experienced engineers. The water issued at the foot of a bluff in a formation consisting mainly of gravel, sand, or glacial drift; this material being quite porous and allowing water to percolate through it, such springs must be handled with great care to prevent a loss into the lower and porous strata.” We think that enough is here shown to defeat a recovery by the city upon the ground of misrepresentation in reference to the quantity of water flowing from these springs. The proof shows that instead of the officers of the city relying upon representations made by the appellant as to the quantity of water flowing from these springs, it employed an agent of its own for the purpose of determining that and other questions connected with the purchase. The agent of their own selection was competent for that purpose; he was brought to the city of Tacoma for the express purpose of experting the proposition and ascertaining the facts in regard thereto. Having ascertained them, he made his report to the council. He shows in his report, and in his deposition, upon what his estimates were based. This proof was all a part of plaintiff’s case, and there is no reason suggested why it should not be considered binding upon the city. Instead of tending to prove the case which plaintiff has stated in its pleading, it absolutely disproves it. Among the witnesses called by the respondent in the trial below were various members of the council who took part in the proceedings which terminated in the passage of an ordinance on March 4,1893, submitting the proposition of purchasing the plant in question at the price of $1,750,000 to the voters of the city. Without undertaking to give in detail their testimony upon this question, we are warranted in saying that it shows that they had read and carefully considered the report of their engineer and, in exercising their judgment and voting upon the different propositions coming before the council involving the purchase of the plant, they did so with full knowledge of what was contained in this report. Hot only the allegation that plaintiff relied upon the representations of the defendant as to the quantity of water flowing from these springs is disproved by plaintiff’s own evidence, but the same evidence disproves another theory of plaintiff’s case, namely, that it (the city) was induced to forego an examination as to the character, condition, extent and value of the system by reason of defendant’s corrupting and bribing the president of the city council, instead of the record showing that the officers of the city were employed or induced to forego making an examination of the property involved in the purchase by reason of defendant’s having corrupted and bribed them, it shows that they selected a competent, expert engineer who made such examination and full report, and this report was actually acted upon. Considering next the second question submitted, namely, as to the quantity of iron pipe then laid, the record shows that Mr. Hering’s report includes a table of lengths of pipe in the distributing system amounting in all to 66.14 miles, and it is contended that the proof shows that only 531 miles of pipe were received. The table so referred to shows the following: “ Miles of pipe laid— To Jan. 1, 1891........................... 37.2 During the year 1891.................... 3.5 To be laid in 1892......................... 25.4 Total miles............................66.1.” The proof further shows that the table accompanying this report was furnished to Mr. Hering by the officers of the company and it may be conceded that he placed reliance upon it in so far, at least, as it purported to contain a statement of the pipe actually laid, inasmuch as to that extent it could not well be verified, and as shown by his deposition he placed reliance upon the estimates made by the appellant, where the works were underground and not accessible. But the proof in this case fails to disclose that the statement contained in the table as to the amount of pipe then actually laid was false. What the proof does show, however, is that instead of the company laying 25.4 miles during the year 1892 as it had estimated in the table above referred to, that it would do, it in fact laid only about 12i miles up to the time of the delivery of the plant to the city, but this, we think, was not an actionable representation. It did not relate to a past transaction nor was it the statement of art existing fact. It was a mere estimate of what they would do in the future, and fraud cannot be predicated upon it. Perkins v. Lougee, 6 Neb. 222; Gage v. Lewis, 68 Ill. 604; Gordon v. Butler, 105 U. S. 553; Sawyer v. Prickett, 19 Wall. 146. In this connection we may say that it sufficiently and satisfactorily appears, and indeed is conceded by counsel for the respondent, that the water pipe involved in the controversy between these parties, reported in 13 Wash. 115, was the pipe embraced within the estimate contained in the table already referred to, and hence it appears that the city has actually received not only all that the appellant represented to have been theretofore laid, but all that it estimated it would thereafter lay during the year 1892. However, as already observed, a statement or representation of the defendant as to what it would add to its system at some future time would not constitute an actionable representation. Evidently the lower court took this view of it when it restricted the jury’s consideration to the quantity of pipe “ then laid,” and we ought not to extend this discussion to a consideration of issues which were withdrawn from the jury. As against the respondent, at least, the rulings thereon constitute for the purpose of this appeal the law of the case. We come next to consider the third question submitted, namely, as to the quantity of land at station “A.” The proof in this connection shows that in the schedule or list of the property connected with this plant which the appellant furnished to the city, it was represented that there were 8.16 acres of land as a part of the plant, being a site for a pumping station “A,” whereas in fact that land contained only .816 of an acre. The exact description contained in the schedule is as follows: “Site for pumping station ‘A:’ In s. w. quarter of n. w. quarter of sec. 9, tp. 20, N. R. 3 E., 8.16 acres.” Some of the councilmen examined in behalf of respondent testified that they acted upon the belief that the tract contained 8.16 acres, and they estimated that the value of the land, supposing it to contain that much, would have been $39,000. The contention of the appellant is that it never intended to represent that it owned 8.16 acres, but that the description in the schedule was due to a clerical error in inserting the decimal point after, instead of before, the figure 8, making it read 8.16 acres instead of .816 acres. We are unable to discover any proof which tends in any degree to show any fraudulent intention on the part of the’appellant in this connection. Not only do we think the proof wholly fails to show any intention to represent that it was the owner of 8.16 acres at the point designated as station “A,” but we also think that the respondent was not misled by the description actually appearing in the schedule. This was one of the subjects embraced within the report of Mr. Hering. In that report the land is correctly stated at .816 acres. Not only that, but it-further appears that the subject was actually discussed before the council prior to its acceptance of the deed from appellant to the property in question, and certain concessions were asked and obtained from the appellant by the respondent in lieu thereof. This of itself would, we think, constitute a full and complete defense to a recovery upon the ground of shortage in the amount of land received, did the evidence tend to show that the city had theretofore heen misled by the statement in the schedule, for notwithstanding that this adjustment was reached after the vote had been taken by the electors of'the city, we think it related to the matter of detail within the power of the council to adjust, and was not such a substantial part of the transaction as necessitated a re-submission to the voters. In either view, there was nothing in the evidence bearing upon this branch of the case which should have been submitted to the jury. The question remaining to be considered is whether there was evidence sufficient to authorize the finding by the jury that the appellant colluded with Mr. Corell, the president of the council, or bribed or corrupted him. Mr. Corell was elected to the council in the spring of 1892, and became a member of that body on April 18 of that year. His term expired one year thereafter. The ordinance submitting the proposition of purchase to the voters of the city passed the council first on February 28, 1898. Later it was recalled, amended and repassed on March 4,1893. The election held in pursuance thereof was on April 11, 1893, but the purchase was not consummated by deed or delivery of the property or payment of the consideration until some time in July following. Mr. Corell was elected to the council pledged to the proposition that the city should own and control its own water and light plant. As president of the council it devolved upon him to appoint the various committees of that body, and among others the fire and water committee, but it is not pretended that, in appointing that committee he was influenced by improper motives; indeed, it is not pretended that he was brought under the influence of the defendant until about January, 1893, subsequent to which time there remained of his official term some three months only. As already observed, Mr. Hering had long prior thereto examined the property and made his report. In December, 1892, the fire and water committee rendered its report to the con oil, which report among other things states : “ The committee has made long and careful investigations of the subjects referred to it, and heretofore has made reports as to the sources of water supply, etc., and it has conducted all of the preliminary investigations that the committee was authorized to make; and has received from the Tacoma Light and Water Company its ultimate offer to sell to the city of Tacoma its entire electric light plant, its entire water plant and sources of supply .as per schedule hereto attached; which ultimate offer is the gross sum of $1,850,000; and “Whereas, The option is one upon which this committee must decide on or before the 31st of December, 1892 (this being the ultimatum given by the Tacoma Light and Water Company), as to whether or not the said ultimate offer will be accepted by the city of Tacoma; and “Whereas, This committee is not justified in rejecting such ultimatum without first submitting it to the entire council; and “ Whereas, Your committee regard the price named as considerably above what the committee would desire it to be, to wit: About $350,000 above what the committee think it should be, still, in view of all the circumstances, your committee consider that it would be for the best interests of the city to own its own water and light plants; therefore, “Your committee on fire and water would recommend to the city council that the ultimate offer of the Tacoma Light and Water Company, of $1,850,000, be considered by the city council, and if accepted, be submitted to the people of the city at the earliest practicable moment for their decision.” This report is signed by the entire committee on fire and water, consisting of five members. It appears from the evidence that there was a subcommittee of the fire and water committee (which sub-committee was composed of councilmen Snyder and Steinbach), to which committee was entrusted the duty of reporting upon the value of the different properties embraced within the plant. This sub-committee was not appointed by Corell. In its report this sub-committee found the total value to be $1, 523,638.05. In his testimony, councilman Snyder says that they took the list of the property as furnished by the appellant, and “valued each piece separately as well as we could, as we were situated away from the property. We formed an opinion of what we knew of the land itself.” He also testified : “ Mr. Steinbach had been in the real estate business, and I thought I knew something of the value of land, and I suppose that is why we got put onto t(ns committee.” He further says, “We cooked the report,” that is, made the value of the property appear as large as possible, but he explained that he was desirous of making the value so appear in view of the strong sentiment prevailing in favor of the purchase of the property and his belief that the appellant could not be induced to sell for the actual value. He expressly denied, and it is not seriously contended by respondent’s counsel, that he was unduly influenced or corrupted or bribed in any manner by the appellant, and there is not a particle of proof in the record tending in any wise to show that he was acting in collusion with the appellant or any of its officers. On January 10, 1893, Mayor Huson and Mr. Corell, as ad visory committee, made a report to the council, from which we quote : “While the price of the Light and Water Company’s plant, namely, $1,850,000 is $350,000 above what the water committee has appraised it at, we as advisors of the water committee believe it is the best proposition for many reasons, several of which are submitted herewith.’’ The report then goes on to show the advantages of of the city purchasing the plant rather than constructing an independent system, which, from reports of previous committees, would costas great or a greater sum than that required to purchase the plant in question, and leave the city to compete with a rival plant, etc., etc. The report further states that the offer of $1,850,000 is $350,000 more than they believe to be its actual value. Thereafter and prior to the final passage of the ordinance submitting the question to the voters of the city, various resolutions were offered in the city council to the effect that the council would not submit any proposition to the voters involving the expenditure, in one resolution, of a million and a quarter dollars, in another, of a million and a half, and many similar propositions, upon all of which Mr. Corell voted “ No,’’ and such action on his part is referred to as evidence tending to show that he was acting in disregard of his duty to his constituents, and in the interest of the appellant, but the record furnishes what we consider a full and sufficient explanation of these votes. Not only did Mr. Corell oppose these various propositions, but a large majority of the council also opposed them, and their reasons for so doing are in the record, and constitute a part of plaintiff’s case. The explanation as furnished by them is that these resolutions were put forward from time to time by members who were opposed to the whole proposition; that they were not made in good faith, bnt for the purpose of delaying and defeating the proposition of the city owning and controlling its own plant, which proposition a greater number of the members of the council had been elected to support; that they felt it was their duty to their constituents to submit the proposition to the people during their official term; that they further considered that the so-called “ultimatum” of the appellant company was — as it professed to be — a final and ultimate offer and proposition, and that in view of the efforts which had been made from time to time by the council to secure a reduction, it was fruitless to submit these various counter-propositions involved in the resolutions opposed by them. In the light of all the correspondence and of the entire record, we think the explanation was full, complete and satisfactory, and that their conduct in this regard does not justify any inference that they or any of them were prompted by other than honest and commendable motives. Their acts throughout the entire transaction, in so far as the record shows, were consistent with the presumption of honesty with which the law surrounds the action of all men. Subsequent to the reports already referred to, a special committee was appointed by Mr. Oorell as president of the council, pursuant to the resolution to that effect, for the purpose of further conferring with the appellant with a view to securing a reduction in the price asked for the plant. For this committee Mr. Oorell named certain members of the council who had been most active in opposing the proposition to purchase at the price offered by the appellant. As a result of the joint efforts of this last named committee and others, the price asked by ap pellant was reduced from $1,850,000 to $1,800,00. Thereafter a further resolution passed the council authorizing the appointment of a committee of three to go to Philadelphia and confer with Mr. C. B. Wright, the principal owner of the plant, with a view to securing a still lower figure. Upon this committee Mr. Corell appointed the mover of the resolution, Mr. Snyder, also Mr. Berry, chairman of the fire and water committee, and upon motion of Mr. Snyder, Mr. Corell as president of the council was named as one of the committee. Mr. Berry being unable to serve, Corell on suggestion of the council appointed Mr. Steinbach in his stead. The record of the city clerk, which was put in evidence by the respondent, shows this to be the history of this latter committee, and it is further supported by the testimony of Mr. Snyder, and other witnesses for the plaintiff, and this evidence is not overcome by the testimony of other members of the council who sought to make it appear that Mr. Corell had appointed himself, but who, when confronted by the record and the testimony of the other witnesses, would not contend as against the record that their memory in that respect correctly served them. In the first place we think that plaintiff should not have been permitted to contradict the record in the manner attempted by it; in the next place we think it was concluded by the testimony of Snyder and others who testified substantially that the record was correct. These witnesses were neither hostile to the plaintiff nor is their good faith called in question. There was also proof that prior to the introduction of the resolution providing for the appointment of this last mentioned committee, Mr. Snyder, the mover of it, suggested to the president of the council that he [Snyder] would like to go on that committee; that Corell told him “that he [Corell] would have the forming of the committee and that he would appoint him [Snyder], and that he also desired to‘ be one of the members, which was perfectly agreeable . . . he being on the light and water committee and being president of the council, I thought he ought to go, and he had taken a great deal of interest in the matter.” The circumstances here disclosed do not justify a suspicion, much less are they “circumstances from which the inference of fraud is natural and irresistible.” Millar & Co. v. Plass, supra; Pederson v. Seattle, etc., Ry. Co., supra; Roberts v. Washington National Bank, supra. This committee went to Philadelphia and as a result of their labors secured a still further reduction in the purchase price of $50,000, and thereupon they recommended submission to the people of the proposition to purchase at the price of $1,750,000, and the proposition was submitted, ten councilmen voting therefor and six against it. The record also shows that when the ordinance under which the proposition was submitted to the voters was before the council, the question of securing an assistant to the city attorney, with whom he might confer in the preparation of the ordinance, etc., was discussed by the council and the names of various eminent counsel suggested as suitable assistants. Finally the matter culminated in appellant’s agreeing to employ Judge Parsons to render such assistance. The record shows that at that time, and for some time prior and at all times subsequent, Mr. Corell was a member of the firm of Parsons & Corell. Subsequent to the purchase of the plant, namely, July, 1893, differences arose between the city and the appellant growing out of the sale, and different suits were insti tuted, two of which came to this court, and are reported in 13 Wash. 115 and 124. In that litigation the appellant was represented by the firm of Parsons & Corell. As already noticed, that litigation was subsequent to the final consummation of the purchase and sale, and was long after Mr. Corell had retired from the council. It further appears that for the services of Mr. Parsons, and of Parsons & Corell, in that litigation and in various other matters connected with the sale, including the assistance rendered the city attorney already referred to, the firm of Parsons & Corell was paid a lump sum, and it is urged that inasmuch as Mr. Corell was at all times subsequent to the time when ordinance No. 790 was introduced into the council, namely, on January 10, 1893, a member of such law firm, he was in the employ of the appellant, and thereby disqualified from discharging his full duty to the respondent city. With this contention we cannot agree, first, because it fully appears from the record that the employment of Judge Parsons in the first instance was with the full knowledge and consent of the entire council; that the purpose of that employment was to aid the city attorney in the preparation of a valid city ordinance under which the proposition could be legally submitted to the judgment of the voters of the city, and that in this respect, and also in the litigation which followed immediately after the passage of the ordinance and prior to the consummation of the purchase, the interests of the city and of the appellant were identical, namely, in having the ordinance adjudged and declared to be a legal and valid ordinance. That was the sole question submitted for determination in that litigation, and the interests' of the city and of the appellant being thus identified, there was no impropriety in the employment of Judge Parsons, or of the firm of Parsons & Corell, in the course of that litigation. Second, the record shows that the council knew of the employment of Judge Parsons and sanctioned it, and that each and every member of the council had full knowledge of the further fact that Judge Parsons was the law partner of the presiding officer of- the council. No objection was made or urged upon that score, and fraud cannot be predicated upon it. Upon this branch of the case we are constrained to say that we have read and carefully examined the entire record, comprising nearly two thousand typewritten pages and numerous exhibits, and from such examination are satisfied that there was no evidence introduced at the trial which could have justified the jury in finding that Mr. Corell or any other member of the city council had been bribed or corrupted by the appellant or induced by it to forego the discharge of any duty which he or they owed to the respondent city. That all of the facts and circumstances relied upon as constituting proof of fraud are consistent with the presumption of honesty, and should be construed accordingly, and under the rule laid down in Pederson v. Seattle, etc., Street Ry. Co., 6 Wash. 207 (33 Pac. 351), and the numerous other cases already cited, the motion for non-suit in this case should have been granted. We have felt less reluctance in reaching and announcing this conclusion in view of a further fact disclosed by the record. By direction of the lower court the remarks of the learned trial judge in ruling upon appellant’s motion for a new trial have become a part of the record herein. These remarks were in part as follows: “ Owing to the fact that Mr. Corell is a member of the bar of this court, and that if the judge of the court were convinced that he had been guilty of corruption in connection with a transaction of this kind, I think it would be the duty of the court to direct proceedings to be instituted for his disbarment; therefore, I think it the duty of the court to indicate a different opinion upon the issue submitted in regard to him from that which the jury has found. And I am willing to say that if I regarded the verdict of the jury as advisory merely, I should find upon that issue differently from what the jury found. Whether that is because I have observed the gentleman and am personally acquainted with him, and his professional character having been above reproach in every regard, of course, I am unable to sa3r; yet 1 feel that it is my duty, having heard all of the evidence, to say that much in exoneration of Mr. Gorell. . . . Because I have thought, and I think now, that the question was one of the pivotal questions without which the verdict could not be sustained; and notwithstanding the feeling that that finding is probably wrong, yet in view of what weight I think should be given to the verdict of a jury, I think the verdict ought not to be set aside. I have almost as much doubt in regard to the amount of this verdict as I have upon the issue in regard to Mr. Gorell. It is a matter that, if I regarded the verdict of the jury as advisory merely, I should be in the greatest doubt whether I would not reduce it almost one-half, if not altogether. But for the reason that it was so difficult a matter to ascertain the value of property of this kind, I do not think that I am any better qualified to judge of the value of that property than the jury. They were twelve men and there is onty one of the court; and I am inclined not to disturb it even on that ground. It is questionable with me whether counsel for the city ought not voluntarily to offer to remit a large portion of that verdict; and yet I do not feel that I would require them to do so or make it a condition upon which alone they could escape a new trial.” We think the learned trial judge labored under a misconception of duty in overruling appellant’s motion for a new trial, after expressing his dissatisfaction with the verdict. Nothing can be clearer than that it was the judgment of the judge, as a result of his consideration of the case, that the verdict was opposed to the evidence on at least one of the material issues—or, as he correctly termed it, “one of the pivotal questions without which the verdict could not be sustained.” The statute which provides that the superior court shall award a new trial when the verdict is contrary to the evidence “means, of course, whenever in its judgment such is the fact, for otherwise the statute would be of no avail.” State v. Billings, 81 Iowa, 100 (46 N. W. 867.) “ To a valid judgment the law requires, first, that there shall be a verdict upon evidence to satisfy the minds of the jury . . . . and, second, that the judge who presides at the trial shall believe that the evidence is sufficient to justify the finding . . . . From the record as made we are led decidedly to the conviction that it was the judgment of the district court . . . that the evidence was not sufficient to sustain the verdict. With this fact apparent of record is there anything in the law to prevent our overruling a judgment based thereon, and in conflict with it? If so, it is the shadow, and not the substance that is of controlling force, and such a conclusion must be sustained at a sacrifice of the very essence of judicial inquiry—the truth. . . The convictions of the mind, when properly known, will override a work of the hand that merely notes an unsupported conclusion.” —Id. The judge who presided below apparently thought that if there was any evidence tending to support the material issues, the verdict was controlling on the court, notwithstanding it was the deliberate conviction of the judge that the evidence warranted a differ ent verdict. Such is not the law. In this respect the functions of the trial judge differs from those of the appellate court. This difference is clearly pointed out by Mr. Justice Brewer in Kansas Pacific Ry. Co. v. Kunkel, 17 Kan. 172: “The one has the same opportunity as the jury for forming a just estimate of the credence .to be placed in the various witnesses, and if it appears to him that the jury have found against the weight of the evidence it is his imperative duty to set the verdict aside. We do not mean that he is to substitute his own judgment in all cases for the judgment of the jury, for it is their province to settle questions of fact; and when the evidence is nearly balanced, or is such that different minds would naturally and fairly come to different conclusions thereon, he has no right to disturb the findings of the jury, although his own judgment might incline him the other way. In other words, the finding of the jury is to be upheld by him as against any mere doubts of its correctness. But when his judgment tells him that it is wrong, that whether from mistake, or prejudice, or other cause, the jury have erred, and found against the fair preponderance of the evidence, then no duty is more imperative than that of setting aside the verdict, and remanding the question to another jury.” “And he should be controlled by his own judgment in the case, and not by that of the jury.” Williams v. Townsend, 15 Kan. 564. “The judge who tried the cause should not hesitate to set aside a verdict where there is a clear preponderance of evidence againt it.” Nevada v. Mining Co., 5 Nev. 422. “ Where the trial court is of the opinion that the verdict is not supported by the evidence, or is against the weight of evidence, it should never hesitate in exercising the power and giving the aggrieved party anew trial.” Reid v. Piedmont, etc., Life Insurance Co., 58 Mo. 421. “If the judge is not satisfied with the verdict and is convinced that it is clearly against the weight of the evidence, it is his duty to set it aside, even though there may have been some conflict in the testimony.” Dickey v. Davis, 39 Cal. 565. See, also, Crossley v. O’Brien, 24 Ind. 325 (87 Am. Dec. 329); Chicago, etc., Ry. Co. v. Reardon, 1 Kan. App. 114 (40 Pac. 931); Kansas City, etc., R. R. Co.v. Ryan, 49 Kan. 1 (30 Pac. 108); Phillpotts v. Blasdel, 8 Nev. 61; Lockwood v. Atlantic Ins. Co., 47 Mo. 51. The verdict in this case can be upheld only by disregarding principles which have long been considered necessary for the protection of the rights and property of the individual, and the judgment entered upon it will be reversed. Hoyt, C. J., and Anders, J., concur.

Mallery, J. The plaintiff husband brought this action for divorce. The parties were married August 8, 1942, in Louisville, Kentucky. They have four children. The court awarded a divorce to both parties, made a division of the property, and granted defendant wife custody of the children with an award for child support. Plaintiff does not appeal from his decree of divorce or the property settlement, but from the award of custody and child support only. The court’s finding of fact No. 9 that the respondent wife had committed adultery, constitutes the pivotal fact with which appellant is concerned upon this appeal. The court found that appellant had threatened respondent and her paramour with criminal prosecution. In cross-examination, the respondent, as well as her paramour and his wife, declined to answer questions relating to adultery, upon the ground that their answers would incriminate them. Appellant moved to strike their entire testimony, and the court’s refusal to do so is the chief error asserted. Rule of Pleading, Practice and Procedure 42, 34A Wn. (2d) 106, which was in effect at the time of the trial and has since been amended, provided: “A party to an action or proceeding shall not be precluded from examining the adverse party as a witness at the trial. The testimony of a party at the trial may be rebutted by adverse testimony. If a party refuse to attend and testify at the trial, his complaint, answer or reply may be stricken out, and judgment taken against him, and he may also, in the discretion of the court, he proceeded against as in other cases of contempt; provided that this rule shall not be construed so as to compel any person to answer any question where such answer may tend to incriminate himself.” A witness who declines to answer a proper question upon the ground that it would tend to incriminate him, has not told the whole truth, which his oath as a witness requires. He will not be permitted to testify to part of the truth only. When a party claims the privilege of not answering a proper question, the court may dismiss his action or strike his testimony. This action was not brought or maintained by respondent, and the most the court could have done, therefore, was to have stricken the testimony. This appeal concerns only the custody, and support of the children. That question is not to be determined upon the basis of the rights of the parties or used as a penalty or reward for their conduct. See Norman v. Norman, 27 Wn. (2d) 25, 176 P. (2d) 349; Sweeny v. Sweeny, 43 Wn. (2d) 542, 262 P. (2d) 207; Olson v. Olson, 46 Wn. (2d) 246, 280 P. (2d) 249. Unwise trial tactics by a party can not be permitted to adversely affect the welfare of children. We agree that the trial court should have stricken the testimony in question, and we disregard it in reviewing the record, which we find supports the decree. The appellant contends that the evidence preponderates against respondent if the evidence in question is stricken. We do not agree. That evidence preponderates which the trial court reasonably finds to be most credible. The court relied heavily upon the testimony of Reverend Woodhams, who was disinterested and knew all about the entire situation. The court did not abuse its discretion in doing so, and in finding that the welfare of the children will be served best by being with their mother. The appellant contends that, with the testimony in question stricken out, there is not enough evidence to prove him guilty of adultery. This may be granted. However, there is no presumption, in the absence of such proof, that he is a fit and proper person to have custody of the children. Striking the testimony does not automatically entitle him to their custody. The appellant’s emphasis upon the inference of respondent’s guilt of adultery which flows from her refusal to answer questions relating thereto, adds nothing, in fact, to the court’s specific finding that she had committed adultery. However, such a finding is not necessarily fatal to her award of custody. Norman v. Norman, supra. The court’s failure to strike the testimony of respondent and her two witnesses did not have any effect upon its finding as to her adultery nor upon the kind of decree it decided to enter. The failure to strike was not, therefore, prejudicial error. The decree is affirmed. Hamley, C. J., Schwellenbach, and Ott, JJ., concur.

Hovey, J. As all parties are appealing, we will continue to refer to them as plaintiffs and defendants, respectively. The plaintiffs are the owners of bonds issued by the defendant irrigation district, which is situate in Stevens county, and of which county the other defendants hold the several positions of commissioners and treasurer. Columbia Irrigation District was organized some time prior to June 1, 1912, and issued bonds bearing that date in the total amount of $55,000. The law relating to a corporation of this class will be found in §§ 6416 to 6512, Rem. Code, and the bonds were issued under the provisions of §§ 64:30 to 6432-3 (P. C. §§3212, 3213, 3399-3401). This district differs from most irrigation districts in that a platted townsite comprises a large portion of its area. The district is several years in arrears in the payment of the interest on its bonds. Assessments have been levied by the directors of the district which have failed to produce sufficient money for this purpose. At the time of hearing, about fifty per cent of the land had been sold for general state and county taxes, and about eighteen per cent additional had been sold to the district for delinquent assessments, leaving less than thirty-two per cent in the names of individual holders. The facts were stipulated and the issues resolve themselves into several questions of law which we are asked to determine.. In addition to the briefs of the parties, there are presented four sets of briefs amicus curiae. Among the conclusions of law made by the trial court are the following: “1. That plaintiffs are entitled to a peremptory writ of mandamus requiring the county commissioners of Stevens county, Washington, to levy an assessment on all the real property within the district, in an amount sufficient to pay current interest as well as the said delinquent interest and the interest accrued thereon, unless the said board of trustees of the said irrigation district shall make such levy within 30 days from the entry thereof, and on the first day of November of each year hereafter unless the trustees shall have made such assessment according to law and at the time provided by law. “2. That such levy against each piece of real property within said district shall be based upon the cash value thereof according to the valuation as fixed by the county assessor for purposes of general taxation for that year. “3. That the land in said district previously sold to the said irrigation district for nonpayment of assessments shall be included in said levy and assessed as though owned by private individuals. ‘ ‘ 4. That the land in said district bought by Stevens county on tax foreclosures shall be included in said levy and assessed as though owned by private individuals. “5. That the lands in said district sold to said irrigation district for nonpayment of assessments or bought by Stevens county on tax foreclosures and subsequently sold to private individuals shall be included in said levy and assessed on the same basis as other property within the district for the purpose of paying off delinquent interest, paying current interest and principal of the bonds as the same mature. “6. That any deficit in interest payment for any particular year, shall be considered, counted and added to the next annual interest and an°assessment made on all the real property in said district sufficient to meet the same. . . . “8. That if assessments levied against property owned by the district are not paid when due, then .such property shall be sold the same as privately owned property, and this shall apply equally to property owned by the county. “9. That in all matters affecting the levying of assessments by the said irrigation district, the sale of property defaulting in the payment of assessments so levied and the right of redemption from such sales, the payment of interest on. the outstanding bonds and the payment of the principal thereof when they shall mature, the statutes in force at the time said bonds were authorized and issued shall govern as though such statute was read into and made a part of each individual bond.” And the judgment is as follows: ‘ ‘ Wherefore, it is considered, ordered and adjudged by the court that a peremptory writ of mandamus issue out of this court under the seal thereof, commanding that upon receipt of said writ, the county commissioners of Stevens county, Washington, levy a tax in accordance with said findings of facts and conclusions of law, and in the manner to be, in said writ stated; and make known to this court within 30 days from the receipt of said writ, how they shall have executed the same, unless in the meantime, the board of trustees of the Columbia Irrigation .District shall have levied said tax.” The judgment is directed to the defendant county officers by virtue of the provisions of § 6437 (Rem. Code; P. C. §3218), of the act. The first and most important question to be disposed of is the character of the obligation created by the bonds. It is the contention of the defendant county officers that the liability for this obligation is a sever-able one, and that whenever a tract of ground is sold for a delinquent assessment or delinquent taxes it is relieved from any liability for further assessment because of the bond issue, and that the remaining lands within the district are not liable for any sums caused by delinquencies arising from failure to collect the assessments against the land so sold. The status of an irrigation district as a municipal corporation has been passed upon in several cases, the conclusion in each case being the result of the controversy then before the court. In Board of Directors Middle Kittitas Irr. Dist. v. Peterson, 4 Wash. 147, 29 Pac. 995, it was held that an irrigation district is not a municipal corporation within the provision of our constitution relative to the debt limit of municipal corporations. But in Brown Brothers v. Columbia Irr. Dist., 82 Wash. 274, 144 Pac. 74, it was decided that an irrigation district is a municipal corporation within the terms of the statute relative to taking a bond for public work as required under §§ 1159-1161, Rem. 1915 Code (P. C. §§ 9724-9727). This was followed by Peters v. Union Gap Irr. Dist., 98 Wash. 412, 167 Pac. 1085, where it was held that the irrigation district is a municipal corporation with such powers as are conferred upon it by statute. We think there can be no doubt that an irrigation district is a municipal corporation when it is considered in relation to its contracts made in the manner prescribed by law. When it comes to the question of the character' of its obligation as affecting"-the lands within its boundaries, an irrigation district differs from most other taxing districts. In the case of an ordinary municipal corporation, its obligations are general, and taxes are levied for their payment without any consideration of special benefit to the property affected. Neither is this question considered at the time the debt is created. In the case of local improvement districts, which are usually subdivisions of a municipal corporation, or in ease of a municipal corporation like those covered by our drainage districts, the specific amount to be apportioned to each piece of property is determined at the time of the creation of the debt, and as each property satisfies the portion charged against it, the holders of the obligation must look to the remaining parcels for the balance due them. In Fallbrook Irrigation Dist. v. Bradley, 164 U. S. 112, it is said that an irrigation district “is created for a public purpose, and it rests in the discretion of the legislature when to create it, and with what powers to endow it. . . . the establishment of its boundaries and the purposes for which the district is created, if it be finally organized by reason of the approving vote of the people, will almost necessarily be followed by and result in an assessment upon all the lands included within the boundaries of the district. The legislature thus in substance provides for the creation not alone of a public corporation, but of a taxing district whose boundaries are fixed, not by the legislature, but, after a hearing, by the board of supervisors (in this case by a board of county commissioners), subject to the final approval by the people in an election called for that purpose.” The court then points out that the hearing on the question of apportionment and the valuation and assessment of the lands come later and at a different time, and at this time the property owner is given an opportunity to present objections thereto. It is then for the first time that specific liens are created upon the lands within the district, and only for the sums then levied. By § 6432, Rem. Code (P. C. § 3213), a specific lien is created upon the property belonging to the district for the payment of the bonds at the time they are issued, but the property belonging to individual holders, although situated within the boundaries of the district, is not the property of the district. The provisions of the statute relative to bonds mate it plain that they are the obligations of the district as a whole. The language used in reference to them is fully as comprehensive as that relating to any of the general obligations of any of the other municipalities of the state. The bonds themselves, a sample of which is an exhibit, recite that “Columbia Irrigation District, a public corporation duly organized and existing under and in pursuance of the Laws of the State of Washington, acknowledges itself to owe, and for value received hereby promises to pay to the bearer hereof. ’ ’ As said in Rialto Irr. Dist. v. Stowell, 246 Fed. 294: ‘ ‘ They were required to contain, and did, contain, an absolute promise to pay to the bearer of them certain sums of money at certain specified dates, with interest thereon at a certain specified rate, with appropriate interest and installment coupons annexed thereto. Neither on their face nor in the statute authorizing their issue is there any condition attached to their payment, nor, in our opinion, any provision in either from which any such condition can be implied. . . . “We regard it as clear that the bonds here in question constitute a general obligation of the irrigation district to pay the principal and interest thereof as therein provided for, ...” And in Norris v. Montezuma Valley Irr. Dist., 248 Fed. 369: “In order to give to these statutes the construction contended for by defendants in error, it is necessary to read into them a provision that there shall be paid on the bonds only so much as the annual levy shall produce in money collected, whereas the statute is peremptory that the bonds and interest shall be paid, and the remaining provisions only indicate the source and mode of obtaining the fund. In order to give full force and effect to every portion of the statute there must not only be an assessment and levy, but the debt must be paid. A statutory obligation of a municipal corporation or quasi municipal corporation to pay its debt, or to fix a rate of levy necessary to provide the amount of money required to pay its debt is not satisfied by an assessment and rate of levy sufficient to pay the debt if the taxes are collected, but requires that there be a sufficient assessment and levy and collection of the taxes as levied to actually pay the debt. East St. Louis v. Amy, 120 U. S. 600, 7 Sup. Ct. 739, 30 L. Ed. 798; Rialto Irr. Dist. v. Stowell, 246 Fed. 294; Boynton v. The District Township of Newton, 34 Iowa 510. “There is neither express nor implied prohibition of the making of a levy large enough to accomplish this purpose. The provision granting power to the county board to estimate and fix the amount of the levy in no way undertakes to limit the amount of the levy they may make.” That the obligation is a general one has been assumed by all courts which have had occasion to pass upon the question, either directly or indirectly, until the recent decision of Interstate Trust Co. v. Montezuma Valley Irr. Dist., 66 Colo. 219, 181 Pac. 123. In that case the supreme court of Colorado decided that the property of one landowner could not be made liable for delinquencies arising from refusal to pay assessments on other lands, and that the delinquencies of one year could not be carried to the next year as against property which had paid its assessments previously incurred, and that the obligation is in fact a severable one. The opinion overlooks the fact that no attempt is made to segregate the obligation at the time it is created, and, in fact, there is no provision made in the acts for a segregation at any time. The acts, by their terms, bind the districts as a whole to pay their obligations, and, in our opinion, the decision of the Colorado court would defeat the purpose of the law, as money could not be secured to build irrigation projects with the very indefinite security which would thus be afforded. It is our conclusion that the obligation is a general one, and that all lands within the district are subject to taxation for the payment of the entire obligation. In addition to the question just considered, the appeal of the county presents five assignments of error: First. Is property sold to Stevens county for delinquent general taxes subject to future assessments for payment of principal and interest oh outstanding bonds? By statute, the lien of general taxes is made superior to the lien for special assessments, and we think there can be no doubt but that a sale for general taxes will foreclose the lien of any assessment then levied against the land for irrigation district purposes. The legislature has, however, provided that all land within the district shall be subject to, and remain liable for, the payment of its obligations until fully paid (§ 6432; P. C. § 3213). Any land owned by the county within the boundaries of the district, unless set aside as provided in the act as not capable of being benefited by the proposed improvement, would receive its benefits and would be subject to assessment. In re Howard Avenue North, Seattle, 44 Wash. 62, 86 Pac. 1117, 120 Am. St. 973, 12 Ann. Cas. 417. We do not see how the fact that the county’s title is acquired by tax foreclosure and subsequent to the organization of the district would make the status of the property any different than that which the county may have acquired from some other source, though the district assessments then in existence are foreclosed by the lien for general taxes. The general obligation of the district still exists and, so far as the debt is not reduced, it is s till owing. It is urged that the liability for general taxes is so superior that all other provisions of law must yield to it. Both liabilities are created by the same authority, viz: the legislature, and both laws should be given effect. To exempt this land would in effect withdraw it from the district and nullify the provision of § 6432 referred to. The only provision made for withdrawal is by application to the board of directors and approval of favorable action by that body by a majority vote of the electors of the district, §§ 6475 to 6479 (P. C. §§ 3257-3261), but § 6475 (P. C. § 3257), provides that this must not impair the obligation of the contracts of the district, and § 6480 (P. C. § 3262), requires an express assent of bondholders. Further than this, the property owner is required to pay all assessments before redeeming, prior to issuance of a deed oh a general tax sale. It should be noted in this connection that the receipt of water or other benefits conferred by the irrigation district is not dependent upon the payment of taxes. But all the land within the district continues to share in the benefits, even though assessments may be in default and the remedy of the district is limited to the sale of the land for nonpayment. We conclude that these lands are subject to future assessments. Second. Is property sold to an irrigation district for unpaid assessments liable to future assessments? The chief argument against continuing to assess these lands is that such action would be futile. By the terms of the law, they are subject to future assessments. The landowner pays all assessments when he redeems, and valuable rights could be lost to the district through a failure to assess, and injustice occasioned owners who did pay. It is argued on behalf of certain bondholders that the inclusion of these lands will so apportion the amount to be raised as to produce an insufficient sum. The law requires the taxing officers to levy a sufficient sum to produce the amount needed and they will naturally make allowance for delinquencies, and the money will eventually be raised if there remain land in the district which continues to pay the assessments. For, as necessarily follows from what we have said, there should be added to the amount needed to pay interest and principal due in a current year a sufficient sum to cover the delinquencies of-the previous year, and this is expressly provided for by § 6437 (P. C. § 3218), as amended by Laws of 1921, p. 448. [Rem. Comp. Stat., 7440.] Third. Is each and every tract within the irrigation district liable for the payments of all the principal and interest due on the outstanding bonds, or only liable for its pro rate share? What we have previously said disposes of this assignment. Fourth. Must the laws in force at the time of the issuance and sale of bonds by the irrigation district relative to the method of levying and collecting taxes be followed where there is subsequent legislation changing the method? The question presented by this assignment relates to the valuing of the property for the purposes of taxation. At the time the bonds were issued, the law provided that the values should be those placed by the county assessor upon the property for state and county purposes. In 1915, the law was amended to provide for assessment according to benefits. We are unable to properly dispose of this assignment for the reason that we are not supplied with the facts pertinent to the issue. If the latter method fails to give proper protection to the bondholder, we are agreed that the law in force at the time the bonds were issued should apply. Cooley on Taxation (3d ed.), 1364; 12 C. J. 1013; 6 R. C. L. 345. We think that the law in force at the time the assessment was levied should be followed if practicable, and the judgment appealed from will be modified to require assessment under the present law, without prejudice to the right of any person interested to secure relief at the time of the going down of the remittitur, or at any subsequent time, upon showing that the latter method of assessment injuriously affects the security of obligations issued under a previous law. Fifth. This assignment seeks to have it declared that the bondholders must first resort to the foreclosure of the lien given them by statute upon the property of the district before invoking the aid of the courts and having assessments made to pay their debts. In our opinion, this provision is only additional security and the creditor is not required to avail himself of it. It was evidently intended by the legislature as a last resort in case of the failure of the land within the district to pay assessments in sufficient amount to satisfy the obligation. The judgment appealed from is affirmed in all respects except for the modification indicated under the fourth assignment. Parker, C. J., Mitchell, Main, Holcomb, and Tolman, JJ., concur. Rem. Comp. Stat., §§ 6417 to 7543.

Madsen, J. — This is an action brought under the Land Use Petition Act by a developer challenging the legality of conditions imposed by the City of Camas for approval of a preliminary plat for a residential subdivision. The challenged conditions include a 30 percent “open space” set aside and provision of a secondary limited access road into the proposed development for emergency vehicles. The Clark County Superior Court ruled on constitutional and statutory grounds that both conditions are unlawful. The Court of Appeals affirmed as to the open space requirement, holding that it constitutes an unconstitutional taking, but reversed as to the secondary access road, upholding this condition. We affirm the Court of Appeals, although in part on different grounds. We conclude that the open space set aside condition violates RCW 82.02.020, and thus do not reach arguments respecting the constitutionality of this requirement. We hold that the developer has failed to establish unconstitutionality or other invalidity of the secondary access road condition. FACTS In March 1995, the developer, Isla Verde International Holdings, Inc., and Connaught International Holdings, Inc. (together Isla Verde), submitted a preliminary plat application for a proposed 32-lot subdivision, Dove Hill, on 13.4 acres located in the City of Camas (City), in Clark County. The Director of Public Works for the City issued a determination of nonsignificance for the project. The plat application was later amended to include 51 lots. Isla Verde planned to extend an existing road, Sierra Lane, into the new subdivision to provide the only access. Sierra Lane would be “stubbed” at the north edge of the development, with plans that it be extended when property to the north of Dove Hill was developed. The Camas Planning Commission considered Isla Verde’s application for preliminary plat approval at several meetings. A number of local residents testified that Sierra Lane often becomes impassable in winter conditions, and that residents of a subdivision south of the proposed subdivision have to park their vehicles at the bottom of the hill because the road becomes impassable. Several residents expressed concerns about fire safety issues. The Camas Fire Marshal also spoke about fire protection. He described the steep-sloped nature of the property, and the danger of wildfires in the area. He asked for a secondary access road for emergency vehicles, describing access into Dove Hill as a very bad situation. The Planning Commission considered how the proposed subdivision would satisfy the City’s “open space” ordinance, former Camas Municipal Code (CMC) 18.62.020 (1991) (repealed Mar. 2002), which requires that every proposed subdivision in the city must retain 30 percent of its area as open space. A June 16, 1995, staff report presented at the June 20, 1995, Planning Commission meeting included findings that, due to its location and configuration, the developer would meet only 37 percent of the total required acreage for open space. The remainder would he satisfied by a “buy down,” i.e., a payment partially in lieu of the set aside, as permitted within the discretion of the Camas City Council by CMC 17.12.090(E) (1991).* * The report said that wildlife would be affected by the development, but a notation added that this comment was made with regard to the original 32-lot proposal. The report also included a notation that a concern had arisen about permitting a “buy down” in lieu of a full 30 percent open space set aside. This is evidently a reference to a June 12, 1995, letter from the City Administrator to the Assistant City Engineer/City Planner recommending that the Planning Commission approve a plat design with a full 30 percent open space set aside. The open space would largely consist of steep wooded slopes. The City Administrator explained that the City Council’s recent decisions on proposed subdivisions had generally preferred the open space set aside rather than the optional “buy down.” He said that a 30 percent set aside would add about four acres to the City’s open space network, would be consistent with the objectives of the open space network, and would be consistent with past council decisions. The Planning Commission approved the application, subject to a number of conditions, including construction of a secondary temporary access road from the end of NW Sierra Lane to an acceptable point to the east. The recommended conditions also contemplated that a homeowner’s association would be required and that it would be responsible for maintenance of the open space areas. On June 26, 1995, Isla Verde’s application came before the Camas City Council for a final decision. The Council permitted local residents to comment on the application, and, with regard to a secondary access road, the same concerns regarding fire protection and access that were raised in the Planning Commission’s meetings were voiced before the Council. The Fire Marshal again expressed concerns about fire protection and access to the proposed development. He also pointed out that the Uniform Fire Code required more than one access road for fire fighting equipment when a determination was made by the fire chief “that access by a single road may be impaired by vehicle congestion, condition of terrain, climatic conditions or other factors that could limit access.” Clerk’s Papers (CP) at 107. The neighbor to the east of the proposed subdivision stated that she would not grant an easement for a secondary access road over her property. With regard to the open space set aside, several people spoke about wildlife at the site. Local resident Richard Palmer (the president of the homeowners’ association for the subdivision just south of Dove Hill) presented a letter from an area habitat biologist with the Washington State Department of Fish and Wildlife addressed to Mr. Palmer. The biologist’s letter stated that adequate open space within the Dove Hill subdivision was critical to survival of wildlife species. The biologist referred to a conversation with Palmer where Palmer told the biologist that several wildlife species had been seen at the site, including the pileated woodpecker, a candidate for listing as threatened, endangered or sensitive, and the ringneck snake, which had been found in Clark County only at one other location and was classified as a monitored species. The letter stated that Fish and Wildlife recommended that the full 30 percent set aside be required. Another resident also referred to this letter and urged that the full 30 percent set aside for open space be required. Isla Verde objected to the secondary access road requirement, stating that satisfying the condition was impossible because Isla Verde would be unable to obtain easements over neighboring property to construct the road. As to open space, as noted, Isla Verde proposed less than a 30 percent set aside, with a “buy down” to make up the difference. Isla Verde also objected to any separate impact fees for parks and open spaces. Chapter 3.88 CMC provides for imposition of impact fees to help pay for the cost of public facilities to serve new growth and development, and CMC 3.88.070 specifically allows impact fees for park and recreational facilities and open space. The City Council decided to delay its decision until after an on-site visit, which occurred July 5, 1995. The Council then initially voted to deny Isla Verde’s application because of fire safety concerns, but on July 24,1995, reconsidered. It approved the preliminary plat application subject to the condition recommended by the Planning Commission for a secondary limited access road. It did not, however, specify where this road must be constructed. The City Council also required a full 30 percent open space set aside, with no “buy down.” The City’s decision on the application does not mention any impact fees imposed pursuant to chapter 3.88 CMC. Isla Verde petitioned for review of the City’s decision under the Land Use Petition Act (LUPA), chapter 36.70C RCW. Following review, the Clark County Superior Court entered an order holding that the secondary access road condition violates substantive due process and chapter 64.40 RCW, because the condition is impossible to satisfy, unduly burdensome, arbitrary and capricious, and denies all viable use of the property. The court held that the open space set aside constitutes a taking under the state constitution and a violation of RCW 82.02.020 and chapter 64.40 RCW, because the City made no individualized determination that the 30 percent set aside requirement is necessary to mitigate an impact of the development, the condition is disproportionate to the impact caused by the subdivision, and the City has not established a need for additional open space within the city limits as a result of the proposed development. Finally, the court held that the City’s imposition of a parks impact fee and an open space impact fee was also unlawful, despite the lack of any such condition in the City’s written decision. The City sought reconsideration, offering evidence to show the reason for enactment of the open space ordinance with its 30 percent requirement. The superior court declined to consider the additional evidence and denied a motion for reconsideration. The Court of Appeals affirmed the superior court’s ruling that the open space set aside condition constitutes an unconstitutional taking. The Court of Appeals upheld the secondary access road condition, however. Finally, that court concluded that since the City had not assessed any impact fees under chapter 3.88 CMC, the issue of whether they could lawfully be imposed was not ripe for adjudica tion. Isla Verde Int'l Holdings, Inc. v. City of Camas, 99 Wn. App. 127, 990 P.2d 429 (1999). The City then sought discretionary review by this court. ANALYSIS Review is under the LUPA, chapter 36.70C RCW. This court stands in the same position as the superior court. Wenatchee Sportsmen Ass’n v. Chelan County, 141 Wn.2d 169, 176, 4 P.3d 123 (2000). Review is limited to the record before the City Council. Citizens for Responsible & Organized Planning v. Chelan County, 105 Wn. App. 753, 758, 21 P.3d 304 (2001); Kahuna Land Co. v. Spokane County, 94 Wn. App. 836, 841, 974 P.2d 1249 (1999). The potentially relevant standards of review in this case are set forth in RCW 36.70C. 130(1), which authorize invalidation of the City’s decision to impose the disputed conditions if that decision (1) is an erroneous interpretation of the law; (2) is not supported by substantial evidence; (3) is a clearly erroneous application of the law to the facts; or (4) violates the constitutional rights of the party seeking relief. The court may grant relief only if Isla Verde, the party seeking relief from the land use decision, has carried the burden of establishing that one of these standards has been met. RCW 36.70C.130. Statutory construction is a question of law reviewed de novo under the error of law standard. Wenatchee Sportsmen, 141 Wn.2d at 176. In order to conclude that substantial evidence supports the factual findings, there must be a sufficient quantity of evidence in the record to persuade a reasonable person that the declared premise is true. Id. Open Space Set Aside Condition The first issue is whether the 30 percent open space set aside condition is valid. As noted, the superior court determined that the open space set aside condition on preliminary plat approval violates state constitutional and statutory provisions, including RCW 82.02.020. The Court of Appeals held that the condition violates the takings clause of the Fifth Amendment to the United States Constitution. Although the Court of Appeals decision rests on constitutional grounds, the condition violates RCW 82.02-.020, as the superior court determined. Accordingly the Court of Appeals should not have reached the constitutional question. We adhere to the fundamental principle that if a case can be decided on nonconstitutional grounds, an appellate court should refrain from deciding constitutional issues. See State v. Speaks, 119 Wn.2d 204, 207, 829 P.2d 1096 (1992) (although Court of Appeals decided constitutional issue, this court declined to reach constitutional issue where case was resolvable on statutory grounds); Tunstall v. Bergeson, 141 Wn.2d 201, 210, 5 P.3d 691 (2000) (where issue may be resolved on statutory grounds, court will avoid deciding issue on constitutional grounds); Tommy P. v. Bd. of County Comm’rs, 97 Wn.2d 385, 391, 645 P.2d 697 (1982) (where case can be resolved on other grounds, court will not reach constitutional issue); Senear v. Daily Journal-Am., 97 Wn.2d 148, 152, 641 P.2d 1180 (1982) (same); Ohnstad v. City of Tacoma, 64 Wn.2d 904, 907, 395 P.2d 97 (1964) (same); see also Skagit Surveyors & Eng’rs, LLC v. Friends of Skagit Valley, 135 Wn.2d 542, 546, 958 P.2d 962 (1998) (because the case was decided on statutory grounds, constitutional issues were not reached); State v. Faford, 128 Wn.2d 476, 481, 910 P.2d 447 (1996) (same); In re Dependency of J.B.S., 123 Wn.2d 1, 7, 863 P.2d 1344 (1993) (same); In re Pers. Restraint of Moore, 116 Wn.2d 30, 32, 803 P.2d 300 (1991) (same). RCW 82.02.020 generally provides, with some exceptions, that the state preempts the field of imposing certain taxes. The statute then states, in relevant part: “Except as provided in RCW 82.02.050 through 82.02.090, no county, city, town, or other municipal corporation shall impose any tax, fee, or charge, either direct or indirect, on . .. the development, subdivision, classification, or reclassification of land.” RCW 82.02.020. There are, besides the involuntary impact fees permitted under RCW 82.02.050 through RCW 82.02.090, three exceptions to the prohibition against direct or indirect taxes, fees or charges on the development or subdivision of land (or classification or reclassification). RCW 82.02.020 “does not preclude dedications of land or easements within the proposed development or plat which the county, city, town, or other municipal corporation can demonstrate are reasonably necessary as a direct result of the proposed development or plat to which the dedication of land or easement is to apply.” RCW 82.02.020. RCW 82.02.020 also permits voluntary agreements that allow a payment in lieu of dedication of land or to mitigate a direct impact that is a consequence of a proposed development, subdivision or plat. In both instances, payment may be required as part of a voluntary agreement only where the county, city, town, or other municipal corporation establishes it is reasonably necessary as a direct result of the proposed development or plat. RCW 82.02.020 requires strict compliance with its terms. Trimen Dev. Co. v. King County, 124 Wn.2d 261, 270, 877 P.2d 187 (1994); R/L Assocs. v. City of Seattle, 113 Wn.2d 402, 409, 780 P.2d 838 (1989). A tax, fee, or charge, either direct or indirect, imposed on development is invalid unless it falls within one of the exceptions specified in the statute. Henderson Homes, Inc. v. City of Bothell, 124 Wn.2d 240, 247, 877 P.2d 176 (1994) (citing R/L Assocs., 113 Wn.2d at 409). The superior court held that the open space set aside condition violates RCW 82.02.020 because there has been no individualized determination that the 30 percent set aside requirement is necessary to mitigate an impact of the development, the condition is disproportionate to the impact caused by the subdivision, and the City has not demonstrated any need for additional open space arising from the development. In his oral ruling, the superior court judge noted that the statute permits dedications of land or easements provided the City can establish that they are reasonably necessary as a direct result of the proposed development. He also noted the statutory requirement that payments in lieu of dedication also must be reasonably necessary as a direct result of the proposed development. The judge said, “I didn’t find anything in the record that showed that there was any consideration of the direct effect of this development to serve as a basis for imposing the 30 percent.” Verbatim Report of Proceedings (June 28,1996) at 102. As noted, the burden of proof under RCW 36.70C-.130(1) is on Isla Verde, while under RCW 82.02.020 the burden of establishing that a condition is reasonably necessary as a direct result of the proposed development is on the City. Keeping these burdens in mind, we address the arguments advanced by the City, the petitioner here, as to why the open space condition is a lawful condition. The City argues that the open space set aside does not violate RCW 82.02.020 because it does not impose a tax, fee or charge on development. Instead, the City maintains, the set aside is a police power based condition imposed pursuant to RCW 58.17.110.* 12******** The City says that RCW 82.02.020 recognizes the authority of cities to require dedication for police power purposes, provided they are reasonably necessary as a direct result of the proposed development or plat. The City says that the necessary connection between a required dedication and the impact of Isla Verde’s proposed subdivi sion has been established legislatively and by evidence in the record. Initially, although some of the City’s argument equates the open space set aside condition to a dedication for purposes of RCW 82.02.020, it maintains that the set aside is not actually a dedication. However, the question we must answer is whether the set aside constitutes a tax, fee or charge within the meaning of the statute. The meaning of RCW 82.02.020 is a question of law reviewed de novo. Wenatchee Sportsmen, 141 Wn.2d at 176; see also State v. Breazeale, 144 Wn.2d 829, 837, 31 P.3d 1155 (2001); State v. J.M., 144 Wn.2d 472, 480, 28 P.3d 720 (2001). The court’s fundamental objective is to ascertain and carry out the Legislature’s intent, and if the statute’s meaning is plain on its face, then the court must give effect to that plain meaning as an expression of legislative intent. J.M., 144 Wn.2d at 480. The question whether a tax, fee or charge is involved also involves application of the law to the facts. For a number of reasons we disagree with the City’s assertion that the set aside condition is not a tax, fee, or charge within the meaning of RCW 82.02.020. The exclusionary language of the statute demonstrates that the prohibited charges are not limited to monetary charges. Specifically, the statute provides that a dedication of land or easement is excluded from the statute’s prohibitions if reasonably necessary as a direct result of the proposed development. The statute thus contemplates that a required dedication of land or easement is a tax, fee or charge. Further, this court has recognized that for purposes of RCW 82.02.020 a tax, fee, or charge can be in kind as well as in dollars. San Telmo Assocs. v. City of Seattle, 108 Wn.2d 20, 24, 735 P.2d 673 (1987) (requirements that owners of low income rental units provide relocation notice and assistance, and replacement of a specified percentage of the low income housing with other suitable housing or contributing to the low income housing replacement fund in lieu thereof, when residential units are demolished or redeveloped to other use violated RCW 82.02.020 as indirect charge on development). The open space condition here is comparable to conditions in a number of cases analyzed under RCW 82.02.020. E.g., Vintage Constr. Co. v. City of Bothell, 135 Wn.2d 833, 959 P.2d 1090 (1998) (RCW 82.02.020 applicable where ordinance required dedication of five percent of land for parks or payment of $400 per lot in lieu thereof; developer entered a “voluntary agreement” to pay in lieu fees) (adopting opinion of the Court of Appeals in Vintage Constr. Co. v. City of Bothell, 83 Wn. App. 605, 922 P.2d 828 (1996)); Trimen, 124 Wn.2d 261 (RCW 82.02.020 applicable where ordinance required dedication of land for open space or payment of fee in lieu thereof; developer paid in lieu fees under voluntary agreement); Henderson Homes, 124 Wn.2d 240 (RCW 82.02.020 applicable where condition required payment of $400 per lot park mitigation fee); United Dev. Corp. v. City of Mill Creek, 106 Wn. App. 681, 698-99, 26 P.3d 943 (RCW 82.02.020 applicable where condition required frontage improvements for drainage along adjacent boulevard), review denied, 145 Wn.2d 1002 (2001); Castle Homes & Dev., Inc. v. City of Brier, 76 Wn. App. 95, 882 P.2d 1172 (1994) (RCW 82.02.020 applicable where voluntary agreement required payment of $3,000 per lot or provision of offsite traffic improvements); View Ridge Park Assocs. v. City of Mountlake Terrace, 67 Wn. App. 588, 839 P.2d 343 (1992) (RCW 82.02.020 applicable where ordinance required developers to construct onsite recreational facilities or pay a fee in lieu thereof). Indeed, the Camas ordinance authorizing the set aside condition is quite similar to the ordinance at issue in Trimen, which required a dedication or reservation of open space, or a fee in lieu thereof. We conclude that the open space set aside condition is an in kind, indirect “tax, fee, or charge” on new development. The next question is whether the 30 percent set aside is unlawful under RCW 82.02.020 or whether it falls within an exception. It is, as explained, Isla Verde’s burden to show that one of the standards in RCW 36.70C. 130(1) applies and requires invalidation of the open space condition. Under RCW 82.02.020, however, the City has the burden of showing that one of the statute’s exceptions applies. With these principles in mind, we address the City’s justifications for imposing the open space condition. As mentioned earlier, the City maintains that the open space condition does not require an actual dedication of land to public use. Nevertheless, the City argues that the exception allowing dedication where reasonably necessary as a direct result of the proposed development of plat does apply in this case, and thus no violation of RCW 82.02.020 exists. The City more directly argues that the open space condition is authorized to mitigate direct impacts of the proposed development. We need not decide whether the set aside provisions require a dedication of land for purposes of the exceptions in RCW 82.02.020 because the City has failed to establish that the 30 percent open space set aside is reasonably necessary as a direct result of the proposed subdivision or reasonably necessary to mitigate a direct impact that is a consequence of the proposed subdivision. We note, however, the possibility that just as a tax, fee, or charge on development may be, in kind, a required set aside of the sort required under CMC 18.62.020 and might be deemed equivalent to a dedication for purposes of the statute, given the Legislature’s obvious intent to allow charges on devel opment where the need for them is a direct result of the development. The City first urges that its set aside requirement falls within the statutory exception because it has made a valid legislative determination of the need for subdivisions to provide for open space set asides to mitigate consequences of subdivision development. The City relies on Trimen for the proposition that such a determination in and of itself satisfies its burden of proving the required connection between the development and the open space condition. The City misreads Trimen. In Trimen, the county conducted a comprehensive assessment of park needs in a report predating the developer’s applications for subdivision approval. Trimen, 124 Wn.2d at 274. That report showed a deficit of park acres in the area of the proposed developments and projected a greater deficit as population expanded. Id. A dedication or reservation of open space at the figure negotiated by the parties would have resulted in an amount of park land roughly proportional to that which the report showed would be needed for the developments’ estimated population. Id. The fees in lieu of dedication were thus upheld by this court. Importantly, and contrary to the City’s argument here, we said that the county’s “fee in lieu of dedication is calculated based on zoning, projected population, and the assessed value of the land that would have been dedicated or reserved. [The county’s] assessment of fees in lieu of dedication are specific to the site.” Id. at 275. Thus, in Trimen the fees imposed were reasonably necessary as a direct result of the proposed subdivisions, i.e., the need for park land was directly attributable to the projected population of the developments and the fees were calculated based upon the value of land that would otherwise be required to be dedicated or reserved for parks to serve the developments’ populations. Trimen does not support the City’s argument that a legislative determination of the need for open space satisfies the exceptions in RCW 82.02.020. Nor does RCW 82.02.020. The statute mandates that a municipality must demonstrate that a dedication is “reasonably necessary as a direct result of the proposed development or plat,” and also mandates that, in the case of a payment in mitigation of a “direct impact that has been identified as a consequence” of the proposed development, a municipality must establish that the payment is “reasonably necessary as a direct result of the proposed development or plat.” RCW 82.02.020 (emphasis added). We have repeatedly held, as the statute requires, that development conditions must be tied to a specific, identified impact, of a development on a community. Vintage Constr. Co., 83 Wn. App. at 611-12, opinion adopted in Vintage Constr. Co., 135 Wn.2d 833; Trimen, 124 Wn.2d at 275; Henderson Homes, 124 Wn.2d at 242-44. RCW 82.02.020 does not permit conditions that satisfy a “reasonably necessary” standard for all new development collectively; it specifically requires that a condition be “reasonably necessary as a direct result of the proposed development or plat.” (Emphasis added.) We reject the City’s argument that it satisfies its burden under RCW 82.02.020 merely through a legislative determination “of the need for subdivisions to provide for open space set asides ... as a measure that will mitigate a consequence of subdivision development.” Am. Br. of Appellant at 38. The City also contends, however, that its steep slopes ordinance supports imposition of the open space condition as a mitigation measure. Under the steep slopes ordinance, if a development site has steep slopes it is an environmentally sensitive area, a geotechnical report is required, and mitigation measures may be required. Former CMC 18.61.020(D), (E), (F), (I). The City points out that the open space ordinance states that open space areas should include “environmentally sensitive areas.” Former CMC 18.62-.020(C). Isla Verde’s property has steep slopes. One difficulty with the City’s contention is that the record does not establish that under the steep slopes ordinance any of the steep slopes here are greater than allowed for development. Former CMC 18.61.050(B)(1). In addition, the geotechnical report prepared for the proposed development concludes that the “property is not within nor part of a potentially unstable slope area.” Dove Hill Subdivision File Records at 277. We note that a determination of nonsignificance was issued under the State Environmental Policy Act, chapter 43.21C RCW. Most importantly, while there may be some negative impact on environmentally sensitive areas, the record does not reveal the extent or significance of such an impact. There is no showing on this record that as to this property a 30 percent open space set aside is reasonably necessary to mitigate development impacts on environmentally sensitive steep slopes. The City next asserts that the record shows a proposed conversion of wooded property to developed property, impact on wildlife, and the City’s recent past practice to favor the full 30 percent set aside over “buy downs” justify the 30 percent open space condition for subdivision approval. The City also refers to the City Administrator’s letter that describes a 30 percent set aside as conforming to the City’s open space network (since the property is wooded, has steep slopes, and wildlife habitat). None of the evidence to which the City refers shows any relation between a 30 percent open space requirement and impacts or effects of Isla Verde’s proposed development. Again, it is arguable that there will be some impact on wildlife habitat, and certainly clearing wooded land to build houses will affect the wooded nature of the site. However, there is no showing that a 30 percent open space set aside is required to address these impacts. The fact that the City has recently imposed the full 30 percent set aside rather than allowing “buy downs” is irrelevant; it says nothing about why an open space set aside is necessitated by a particular proposed subdivision. Instead, the open space condition to obtain plat approval is uniformly applied, in the preset amount, regardless of the specific needs created by a given development. The fees or charges authorized under the exceptions in RCW 82.02.020, whether direct or indirect, may not be imposed automatically, but must be tied to a direct impact of the proposed development. See Henderson Homes, 124 Wn.2d 240 (payment of a preset $400 per lot fee as a park mitigation fee invalid); Vintage Constr. Co., 83 Wn. App. 605, opinion adopted in Vintage Constr. Co., 135 Wn.2d 833 (condition requiring dedication of five percent of land for park or payment of $400 per lot invalid). Aside from the ordinance requiring a flat 30 percent set aside for every proposed subdivision, there is nothing in the record explaining why 30 percent was chosen as the amount of open space needed in this case. Finally, the City’s claim that RCW 58.17.110 provides police power authority to impose the open space condition does not validate the condition. RCW 58.17.110 requires local governments to ensure that proposed plats make appropriate provisions for the public health, safety and welfare, including open spaces. Although local governments are encouraged to require developers to set aside open space under this statute, nowhere does the platting statute authorize an across the board 30 percent set aside for open space. Recognizing that local governments have the authority to adopt regulations or to withhold plat approval if appropriate provisions have not been made, courts have interpreted RCW 58.17.110 as allowing such conditions only where the purpose is to mitigate the problems caused by the particular development. Southwick, Inc. v. City of Lacey, 58 Wn. App. 886, 892-93, 795 P.2d 712 (1990). Indeed, the City agrees that conditions imposed in accord with RCW 58.17.110 must be necessary as a direct result of the development. RCW 58.17.110 does not authorize the City’s condition in this case. We conclude that the open space set aside condition does not fall within any exception in RCW 82.02.020. The City also relies on RCW 35A.63.100 as authority for its 30 percent open space condition. That statute provides municipal authority to code cities to divide the municipality into appropriate zones within which specific standards, requirements, and conditions may be provided for regulating the use of public and private land, buildings, and structures, and the location, height, bulk, number of stories, and size of buildings and structures, size of yards, courts, open spaces, density of population, ratio of land area to the area of buildings . . . setbacks .... RCW 35A.63.100(2) (emphasis added). As the statute states, ordinances enacted under its authority are “zoning ordinance [s].” Id. Although its preamble states that Camas Ordinance 1820 (1991), which includes former CMC 18-.62.020, amends the zoning code to provide for an overlay zone, the body of the ordinance does not simply treat the open space requirement as a zoning requirement. Former CMC 18.62.010(A) first states that the open space condition will be required in areas shown on the zoning map with a use classification of “P.” However, it then states, u[i]n addition, the standards and requirements of this chapter shall apply to any application or proposal involving a planned unit development, subdivision or short subdivision, or any site with a portion of the site designated for the Open Space Network.” Id. (emphasis added). The open space ordinance thus applies to any subdivision, regardless of zoning, as a condition for subdivision approval, and, as explained, its application here burdens development in the way that is proscribed under RCW 82.02.020. We hold that the 30 percent open space set aside condition for approval of Isla Verde’s plat application violates RCW 82.02.020 and is therefore invalid. Secondary Access Road Condition In its answer to the petition for review, Isla Verde contends that the Court of Appeals erred in upholding the constitutionality of the City’s conditioning approval of Isla Verde’s plat application on provision of a secondary access road for emergency vehicle use. Isla Verde contends that the condition is impossible to perform and illegally delegates a veto power to the neighbors, and therefore its imposition violates substantive due process. Isla Verde’s argument rests on the premise that the access road must be constructed on property to the east of the proposed development, and the owner of that property has stated that she will never grant an easement for a secondary access road. Isla Verde also says that the condition constitutes a taking, because the property is not suitable for any other purpose and therefore imposing a condition on subdivision development that is impossible to perform deprives it of any economically viable use for the property. We agree with the Court of Appeals that the record does not support Isla Verde’s claim of impossibility, and therefore its constitutional challenges to the secondary access road condition fail. Initially, we emphasize that the City’s decision does not mandate that the secondary access be provided by a road over the property to the east, as Isla Verde has claimed. While a city staff report proposed that condition, the City Council’s final decision provides only that “the applicant provide a secondary access to the subject real property that is sufficient to permit utilization by emergency vehicles and that satisfies the standards of the Uniform Fire Code for fire apparatus access roads.” Dove Hill Subdivision File Records at 149. Before approving a subdivision development a local governmental entity must consider the adequacy of access to the proposed development and may condition approval of a plat on provision of adequate access. Lechelt v. City of Seattle, 32 Wn. App. 831, 835, 650 P.2d 240 (1982); see RCW 58.17.110. However, while a municipality has authority to make appropriate provisions for the public health, safety, and welfare, and to condition plat approval accordingly, it does not have authority to require a developer “ ‘to shoulder an economic burden, which in justice and fairness the public should rightfully bear.’ ” Weden v. San Juan County, 135 Wn.2d 678, 706, 958 P.2d 273 (1998) (quoting Orion Corp. v. State, 109 Wn.2d 621, 648-49, 747 P.2d 1062 (1987)). The burden of proving a violation of substantive due process is on Isla Verde. Christianson v. Snohomish Health Dist., 133 Wn.2d 647, 659-61, 946 P.2d 768 (1997). A land use regulation is not violative of substantive due process where (1) the regulation aims to achieve a legitimate public purpose; (2) the means adopted are reasonably necessary to achieve that purpose; and (3) the regulation is not unduly burdensome on the property owner. Presbytery of Seattle v. King County, 114 Wn.2d 320, 331, 787 P.2d 907 (1990). Isla Verde concedes that a secondary access road for emergency vehicles serves a legitimate public purpose. The concession is appropriate. See, e.g., Kahuna Land Co. v. Spokane County, 94 Wn. App. 836, 843, 974 P.2d 1249 (1999) (a requirement that there be adequate access to a subdivision serves a legitimate public purpose). Isla Verde contends, however, that the means to achieve the public purpose are unreasonable. Isla Verde character izes the decision to require a secondary access road as the City’s “mere desire” to have a second road. Moreover, Isla Verde argues, it is not reasonable to require an impossible or oppressive condition. The record demonstrates that an additional access route is reasonably necessary to provide fire protection for the residents of the new Dove Hill subdivision. Testimony established that Dove Hill is located in a hazardous fire area and Sierra Lane alone would provide inadequate access to the proposed subdivision in the event of a fire. The testimony of the Camas Fire Marshal and that of a number of local residents was that Sierra Lane can become impassable in inclement weather. The Camas Fire Marshal also testified that Sierra Lane is inadequate under current code requirements for emergency vehicle access. Dove Hill, with its proposed 51 lots, will certainly add to the need for adequate fire and other safety protection; Isla Verde’s proposed development will significantly increase the population that must be served. Fire and other rescue vehicles must have adequate access for emergency purposes, and Sierra Lane is not adequate to provide such access to the proposed subdivision. Although Isla Verde complains that the condition is impossible to satisfy, it relies solely on the testimony of one neighbor to the east who has stated that she will not grant an easement for construction of a secondary access road over her property. There is no evidence that Isla Verde has made any attempts to secure this or any other property prior to filing this suit. Even if this particular property is unavailable, Isla Verde has not shown that all reasonable efforts to meet the secondary access road condition would be frustrated. Moreover, while Isla Verde also cites testimony that it says supports its conclusion that there is no access from the north, it fails to note that the testimony actually indicates a possible alternate route. CP at 252-53. Thus, Isla Verde has not established that the selected means of achieving a legitimate public purpose—a secondary access road for emergency vehicles—is unreasonable, either as a mere desire for a second road or as an impossible condition to meet. As to the third factor in the substantive due process analysis, we consider the (a) nature of the harm to be avoided; (b) the availability and effectiveness of less drastic measures; and (c) the economic loss suffered by the property owner. Presbytery of Seattle, 114 Wn.2d at 331. Other nonexclusive factors that may be helpful in the balancing required under the third factor include the seriousness of the public problem, the extent to which the landowner’s property contributes to the problem, the degree to which the regulation solves the problem, and the feasibility of less burdensome solutions. Id. The harm to be avoided is an uncontrolled fire within the proposed subdivision or the need for a rescue or other emergency assistance. The problem is serious because, as the record establishes, Sierra Lane is inadequate and human life and property are at risk. Isla Verde maintains, though, that the problem of inadequate access via Sierra Lane existed prior to its proposed development, and it has not contributed to the need for a secondary access road. As explained above, however, the increased population of the proposed subdivision exacerbates the problem, creating a greatly increased risk of harm. The record does not show any less drastic solution that would be as effective as providing a secondary access road. Isla Verde also contends that the condition is economi cally fatal to its development. As noted, Isla Verde claims that the condition is impossible to comply with because the neighbor to the east has said she will grant no easement, and thus, Isla Verde maintains, it cannot satisfy the condition and cannot develop its property. As explained, the record does not support Isla Verde’s claim of impossibility. While Isla Verde has also argued that any alternate route would be excessively expensive, it cites to no evidence that backs this claim. Finally, because the condition does not specify any particular access, it clearly does not grant a veto to the neighbor to the east, contrary to Isla Verde’s contention. We therefore do not reach the question of the validity of a condition that did grant a “veto.” We conclude, after balancing the various factors, that the secondary road access condition does not violate substantive due process. Isla Verde also argues that the condition is arbitrary and capricious because it cannot be performed, and all uses on the property are therefore denied. In addition to arguing that substantive due process is thus violated, Isla Verde also argues that chapter 64.40 RCW is violated. RCW 64.40.020(1) states that “[o]wners of a property interest who have filed an application for a permit have an action for damages to obtain relief from acts of an agency which are arbitrary, capricious, unlawful, or exceed lawful authority.” As the Court of Appeals held, the City’s act in imposing the secondary access road condition was not arbitrary or capricious. An act is arbitrary or capricious if it is a “ ‘ “wilful and unreasonable action, without consideration and regard for facts or circumstances.” ’ ” Landmark Dev., Inc. v. City of Roy, 138 Wn.2d 561, 573, 980 P.2d 1234 (1999) (quoting Teter v. Clark County, 104 Wn.2d 227, 237, 704 P.2d 1171 (1985) (quoting Miller v. City of Tacoma, 61 Wn.2d 374, 390, 378 P.2d 464 (1963))). “ mere there is room for two opinions, action is not arbitrary or capricious when exercised honestly and upon due consideration ....’” Landmark Dev., 138 Wn.2d at 573 (quoting DuPont-Fort Lewis Sch. Dist. No. 7 v. Bruno, 79 Wn.2d 736, 739, 489 P.2d 171 (1971)). As explained above, the record does not support Isla Verde’s contention that the secondary road access condition is impossible to comply with, and thus the City’s action in imposing the condition is not arbitrary or capricious on that ground. Further, when making its decision, the City visited the development site, considered all the evidence, including the Fire Marshal’s testimony and recommendations, and the testimony of residents about the poor road conditions of Sierra Lane during winter weather, and additionally considered the problems posed by the topography of the site. The record shows that the City’s concerns about public safety in the absence of a secondary access road are legitimate. The City made a reasonable decision when it required Isla Verde to provide a secondary access road for emergency vehicles. We conclude that chapter 64.40 RCW was not violated. Our analysis makes it unnecessary to address Isla Verde’s summary contention that the secondary road access condition constitutes a taking. Because Isla Verde has not supported its claim that compliance is impossible, it has not shown that it is left with no viable economic use of the property. Finally, we agree with the Court of Appeals that because the City has not actually imposed any parks and open space impact fees, Isla Verde’s challenges to the imposition of any such fees is not ripe for judicial review. There is no land use decision reviewable under the LUPA. See RCW 36.70C.020; see also Rhod-A-Zalea & 35th, Inc. v. Snohomish County, 136 Wn.2d 1, 959 P.2d 1024 (1998) (insofar as constitutional challenge is made). Therefore, we do not address the propriety of any such fees. CONCLUSION The City’s condition on plat approval that Isla Verde set aside 30 percent of its property as open space violates RCW 82.02.020 and is therefore invalid. Isla Verde has failed to establish that the City’s condition that Isla Verde provide secondary access for emergency vehicles violates substantive due process or is arbitrary and capricious in violation of chapter 64.40 RCW. Accordingly, we uphold that condition. The Court of Appeals decision as to these conditions is affirmed, and this matter is remanded for further proceedings. Smith, Ireland, and Bridge, JJ., and Guy, J. Pro Tern., concur. Isla Verde identified the steepest as having about a 30 percent slope. Former Camas Municipal Code (CMC) 18.62.020 provides in part: A. Proposals for lands within the city that are zoned for single-family or multifamily residential use shall retain a minimum of thirty percent of the site as open space. B. For the purpose of this section, “open space(s)” shall be defined to mean areas set aside and suitable for active or passive recreation; and areas maintained in a natural state, providing habitat for wildlife, and/or containing significant trees and vegetation. This requirement shall be in addition to any area required to be dedicated to meet standards for the provision of parks, schools, open space or other facilities except that the city may allow up to half of the required open space to be credited toward the open space network. C. To the extent possible, open space areas on a site should contain forested areas, significant trees, wildlife habitat for protected species, and any environmentally sensitive areas located on the site as identified on the city sensitive areas maps or discovered in the field. Where possible, individual open space areas should be contiguous to other existing or planned open spaces so as to permit creation of a larger contiguous area or a continuous corridor. Except where developed for active recreation, open space areas are to be maintained in a natural and undisturbed state. D. Open space areas shall be protected and preserved through a permanent protective mechanism acceptable to the city. This may include placing the open space area in a separate tract; execution of a protective easement; or dedication to a public agency or public or private land trust. The mechanism or agreement shall provide for maintenance. CMC 17.12.090(E) provides: E. Location of required project open space and open space network, if applicable. If the city determines that the location, quality or extent of the required project open space, particularly on smaller plats or short plats, would not fulfill the intent or purpose of useful common open space, that requirement may be waived. If the requirement is waived, no increase in density can occur unless the city determines that a payment of an equivalent fee in lieu of the required project open space is appropriate. Such fee will be placed in the city’s impact fee fund for open space acquisition and will not be subject to refund. The June 16, 1995, staff report states that the question regarding the status of the pileated woodpecker had been resolved and that the species is considered a candidate species and is neither threatened nor endangered according to state and national species lists. At the time the preliminary plat application came before the City Council, the proposed 51-lot plat map stated on its face that it provided .4 acres of open space, while the City Council’s findings were that a 1.49-acre set aside was provided for. Both figures are considerably less than the 4-acre set aside necessary to meet the 30 percent requirement of former CMC 18.62.020. Although the superior court had found a taking under our state constitution, the Court of Appeals found a taking in violation of the Fifth Amendment to the United States Constitution. RCW 36.70C.130(1) provides in relevant part: (b) The land use decision is an erroneous interpretation of the law, after allowing for such deference as is due the construction of a law by a local jurisdiction with expertise; (c) The land use decision is not supported by evidence that is substantial when viewed in light of the whole record before the court; (d) The land use decision is a clearly erroneous application of the law to the facts. (f) The land use decision violates the constitutional rights of the party seeking relief. Although some earlier cases, including San Telmo Associates v. City of Seattle, 108 Wn.2d 20, 735 P.2d 673 (1987), turned on whether a payment was an unauthorized tax as opposed to a valid regulatory fee or charge, it has been clear since R/L Associates v. City of Seattle, 113 Wn.2d 402, 780 P.2d 838 (1989) that this court interprets the statute according to its plain terms, thus including all charges without regard to whether the payment is a tax or not. RCW 82.02.020 was amended, and RCW 82.02.050 through .090 were enacted, as part of the Growth Management Act of 1990. Laws op 1990,1st Ex. Sess., ch. 17, §§ 42-44, 46-48. Most cases concerning RCW 82.02.020 involved prior versions of the statute, and do not concern the involuntary fees that may be imposed. E.g., Henderson Homes, Inc. v. City of Bothell, 124 Wn.2d 240, 877 P.2d 176 (1994); Trimen Dev. Co. v. King County, 124 Wn.2d 261, 877 P.2d 187 (1994). The fact that RCW 82.02.050 through .090 create another exception to the general prohibition in RCW 82.02.020 has been recognized, however. View Ridge Park Assocs. v. City of Mountlake Terrace, 67 Wn. App. 588, 596, 839 P.2d 343 (1992); see generally 17 William B. Stoebuck, Washington Practice, Real Estate: Property Law § 5.5, at 277-78 (1995). Impact fees under RCW 82.02.050 through .090 may be imposed on development activity by counties, cities, and towns that are required to or choose to plan under RCW 36.70A.040 as part of public facilities financing. RCW 82.02.050(2). The impact fees may be imposed only for system improvements reasonably related to the new development, shall not exceed a proportionate share of system improvements reasonably related to the new development, and the improvements must reasonably benefit the new development. RCW 82.02-.050(3)(a), (b), (c). “System improvements” are public facilities included in the capital facilities plan to provide service to service areas within the community at large, in contrast to project improvements. RCW 82.02.090(9). “Service areals]” are defined geographic areas in which a defined set of public facilities provide service to development within the area. RCW 82.02.090(8). “Public facilities” are capital facilities owned or operated by government entities: public streets and roads, publicly owned parks, open space, and recreation facilities, school facilities, and fire protection facilities unless they are part of a fire protection district. RCW 82.02.090(7). “Project improvements” are site improvements and facilities for a particular development project, and are needed for the use and convenience of the occupants and users of the project. RCW 82.02.090(6). No improvement or facility in an approved capital facilities plan shall be considered a project improvement. Id. RCW 82.02.060(l)(c) states the Legislature’s intent that impact fees are imposed through established procedures and criteria so that a development does not pay arbitrary or duplicative fees for the same impact. RCW 82.02.020 provides in relevant part: Except only as expressly provided in chapters 67.28 and 82.14 RCW, the state preempts the field of imposing taxes upon retail sales of tangible personal property, the use of tangible personal property, parimutuel wagering authorized pursuant to RCW 67.16.060, conveyances, and cigarettes, and no county, town, or other municipal subdivision shall have the right to impose taxes of that nature. Except as provided in RCW 82.02.050 through 82.02.090, no county, city, town, or other municipal corporation shall impose any tax, fee, or charge, either direct or indirect, on the construction or reconstruction of residential buildings, commercial buildings, industrial buildings, or on any other building or building space or appurtenance thereto, or on the development, subdivision, classification, or reclassification of land. However, this section does not preclude dedications of land or easements within the proposed development or plat which the county, city, town, or other municipal corporation can demonstrate are reasonably necessary as a direct result of the proposed development or plat to which the dedication of land or easement is to apply. This section does not prohibit voluntary agreements with counties, cities, towns, or other municipal corporations that allow a payment in lieu of a dedication of land or to mitigate a direct impact that has been identified as a consequence of a proposed development, subdivision, or plat. A local government shall not use such voluntary agreements for local off-site transportation improvements within the geographic boundaries of the area or areas covered by an adopted transportation program authorized by chapter 39.92 RCW. Any such voluntary agreement is subject to the following provisions: (1) The payment shall be held in a reserve account and may only be expended to fund a capital improvement agreed upon by the parties to mitigate the identified, direct impact; (2) The payment shall be expended in all cases within five years of collection; and (3) Any payment not so expended shall be refunded with interest at the rate applied to judgments to the property owners of record at the time of the refund; however, if the payment is not expended within five years due to delay attributable to the developer, the payment shall be refunded without interest. No county, city, town, or other municipal corporation shall require any payment as part of such a voluntary agreement which the county, city, town, or other municipal corporation cannot establish is reasonably necessary as a direct result of the proposed development or plat. RCW 58.17.110 provides in part: (1) The city, town, or county legislative body shall inquire into the public use and interest proposed to be served by the establishment of the subdivision and dedication. It shall determine: (a) If appropriate provisions are made for, but not limited to, the public health, safety, and general welfare, for open spaces, drainage ways, streets or roads, alleys, other public ways, transit stops, potable water supplies, sanitary wastes, parks and recreation, playgrounds, schools and schoolgrounds, and shall consider all other relevant facts, including sidewalks and other planning features that assure safe walking conditions for students who only walk to and from school; and (b) whether the public interest will be served by the subdivision and dedication. (2) A proposed subdivision and dedication shall not be approved unless the city, town, or county legislative body makes written findings that: (a) Appropriate provisions are made for the public health, safety, and general welfare and for such open spaces, drainage ways, streets or roads, alleys, other public ways, transit stops, potable water supplies, sanitary wastes, parks and recreation, playgrounds, schools and schoolgrounds and all other relevant facts, including sidewalks and other planning features that assure safe walking conditions for students who only walk to and from school; and (b) the public use and interest will be served by the platting of such subdivision and dedication. If it finds that the proposed subdivision and dedication make such appropriate provisions and that the public use and interest will be served, then the legislative body shall approve the proposed subdivision and dedication. Dedication of land to any public body, provision of public improvements to serve the subdivision, and/or impact fees imposed under RCW 82.02.050 through 82.02.090 may be required as a condition of subdivision approval. Dedications shall be clearly shown on the final plat. No dedication, provision of public improvements, or impact fees imposed under RCW 82.02.050 through 82.02.090 shall be allowed that constitutes an unconstitutional taking of private property. The legislative body shall not as a condition to the approval of any subdivision require a release from damages to be procured from other property owners. The briefing to this court principally concerns constitutional issues. The City’s argument respecting RCW 82.02.020 appears in its appellant’s brief to the Court of Appeals. Although there has been some dispute about the nature of the set aside, the City Council’s written findings and decision expressly provide that Isla Verde must comply “with all standard and special conditions set forth in the staff report [of June 16, 1995] that are not inconsistent with these findings, conclusions and decision.” Clerk’s Papers (CP) at 9. The staff report includes recommended conditions, including, as noted, that a homeowners’ association be required and that “[t]he open space area within this development will be owned and maintained by the homeowner’s association.” Dove Hill Subdivision File Records at 114. These conditions are consistent with the City Council’s written decision, and thus they apply. See Southwick, Inc. v. City of Lacey, 58 Wn. App. 886, 893-94, 895, 795 P.2d 712 (1990) (ROW 82.02.020’s voluntary agreement exceptions show “legislative intent to stop the imposition of general social costs on developers, while at the same time allowing the continued imposition of costs that are directly attributable to the development”; it would be anomalous to allow a municipality to charge a fee to pay for improvements necessitated by developer but not to allow the municipality to require that the developer make the improvements as a condition of site approval). The evidentiary importance of this fact should not be overemphasized. Whether a determination of nonsignificance has or has not been issued is not dispositive. Moreover, insofar as the record shows, a determination of nonsignificance was issued with respect to the 32-lot proposal, not the 51-lot proposal. The concurrence criticizes the majority for deciding this case under RCW 82.02.020 on what it calls an “inadequate” and an “insufficient” record; the concurrence even goes so far as to say the majority concedes that the record is inadequate. Concurrence at 771, 772. The concurrence misreads the majority. The record is sufficient to decide the issue presented. The problem to which the criticism is more appropriately addressed is the City’s failure to establish a record that justifies its imposition of the set aside condition on Isla Verde. That is a matter of the City failing to meet its burden of proof, not a matter of an inadequate record on which to make a decision under RCW 82.02.020. We also note that by its express terms the City’s open space ordinance set aside condition is in addition to any dedications under RCW 58.17.110: “This requirement shall he in addition to any area required to be dedicated to meet standards for the provision of parks, schools, open space or other facilities; except that the city may allow up to half of the required open space to be credited toward the open space network.” Former CMC 18.62.020(B). We do not understand the City to have imposed any other open space requirement in this case than the 30 percent set aside, however. As the Court of Appeals noted, one alternative was mentioned in testimony, i.e., a combination of sprinkler systems and fire-resistant building materials. However, as that court also noted, the record does not contain any evidence that this would be either less expensive or as effective as a limited access road. There is no basis for concluding it would be an available, less drastic, but still effective alternative. (Isla Verde did not agree to this alternative, and does not mention it in appellate briefing.) Isla Verde does maintain that it proposed a looped road system as a viable alternative. However, while Isla Verde did suggest this possibility in oral comments, it never submitted a proposal to the City with this alternative design. We do not foreclose the possibility that a looped road system could be approved by the City as an alternative. We do conclude, however, that there is insufficient evidence to find on this record that a looped system would provide an effective less drastic measure.

Parker, J. The defendant, Edelstein, was, by information filed by the prosecuting attorney for Spokane county on the 9th day of October, 1925, in the superior court for that county, charged with the crime of burglary in the second degree, as follows: “That the said defendant, Isadore R. Edelstein, in the county of Spokane, state of Washington, on or about the 23rd day of July, 1922, then and there being, did then and there wilfully, unlawfully and feloniously, with intent to commit a crime therein, break and enter a certain room and structure, towit: a vault on the 9th floor of the Paulsen Building, said building located at the corner of Riverside avenue'and Stevens street, in the city and county of Spokane, Washington, said vault then and there being a structure wherein property was kept for use and deposit: That said Isadore R. Edelstein, from and after the 23rd day of July, 1922, up to and including the 2nd day of October, 1925, was not usually and publicly resident within the state of Washington.” This concluding allegation was for the purpose of avoiding the barring of the prosecution, by lapse of time following the alleged commission of the crime. The defendant was arrested in San Francisco, and soon thereafter, on October 30, 1925, brought to Spokane, and, having been duly arraigned to answer to the charge of the information, pleaded not guilty. On December 9, 1925, his trial upon that charge was commenced in the superior court for Spokane county sitting with a jury, and resulted, on December 16,1925, in a verdict of guilty, as charged, being rendered against him. On January 2, 1926, the prosecuting attorney for Spokane county filed in the superior court for that county another information, supplemental to the former information, charging the defendant with being an habitual criminal, as follows: “That the said defendant, Isadore R. Edélstein, alias J. R. Edelstine, on or about the 11th day of August, 1913, in the county of Greene, state of Missouri, in the criminal court of said county and state, in Cause No. 56770, under the name of J. R. Edelstine, was then and there duly and legally convicted of the crime of burglary, the same being a felony at that time, and at all times since, under the laws of the state of Washington. . . . That the said defendant, Isadore R. Edelstein, alias J. R. Edelstine, on or about the 4th day of January, 1919, in the county of King, state of Washington, in the superior court of said county and state, in Cause No. 9169, under the name of Isadore Edelstein, was then and there duly and legally convicted of the crime of burglary in the second degree, the same being a felony at that time, and at all times since, under the laws of the state of Washington. That the said defendant, Isadore R. Edelstein, alias J. R. Edelstine, on or about the 16th day of December, 1925, in the county of Spokane, state of Washington, in the superior court of said county and state, in Cause No. 9044, was duly and legally convicted of the crime of burglary in the second degree, the same being a felony at that time, and at all times since, under the laws of the state of Washington.” The conviction last so charged is the conviction by the verdict of the jury above noticed as the substantive conviction; judgment and sentence not then having been rendered thereon. Other prior convictions were charged in this supplemental information, but the prosecuting attorney elected to proceed only upon the two mentioned in the above quoted language thereof. There then followed unsuccessful efforts, by prohibition proceedings in this court in behalf of the defend ant, to prevent the superior court from proceeding with his trial upon the habitual criminal charge under the supplemental information. These efforts appear in State ex rel. Edelstein v. Huneke, Judge of the Superior Court, reported in 138 Wash. 495, 244 Pac. 721, and 140 Wash. 385, 249 Pac. 784, which decisions are of moment touching some legal problems to be hereafter noticed, though of no moment as facts in this controversy. The superior court having overruled the defendant’s plea in abatement, demurrer and motion to quash, directed against the habitual criminal charge, on April 1, 1927, he entered his plea of not guilty of the charge of being an habitual criminal. On April 8, 1927, trial upon that charge commenced, resulting in a verdict of a jury as follows: “Find the defendant guilty of being an habitual criminal, and further find that said defendant has been convicted of a felony two times prior to December 16, 1925.” Thereafter the defendant’s motion for arrest of judgment, and in the alternative for a new trial, being overruled, the superior court, on April 26, 1927, rendered final judgment against the defendant sentencing him to life imprisonment in the penitentiary, in pursuance of the provision of Rem. Comp. Stat., §2286 [P. C. §8721]. From this final disposition of the case, upon the substantive and supplemental charges, the defendant has appealed to this court. The principal outstanding facts of this case, as we think the jury were warranted in viewing them and as they evidently did view them, may be summarized as follows: The Paulsen building in Spokane is a large 11-story office building, having its main front entrance; to the north, on Riverside avenue and a side entrance through a stairway into its basement, to the west, on Stevens street. There is maintained in the building, on each of the ten office floors opening into the hall, a vault with private compartments therein for the-use of tenants, each tenant being assigned a separate compartment. The main door of each vault is locked with a Yaletown combination lock. The inside compartments are all locked with keys furnished to the several tenants; the keys so furnished to each tenant being capable only of locking and unlocking the one compartment assigned to such tenant. There was a master key, securely kept by the management of the building, by the use of which all of the private compartments could be unlocked. During the business hours of business days, that is, days other than Sundays and holidays, the main vault doors were, by the building management, kept open, so that the mechanism of the combination locks attached to the inside of the doors was exposed to' view and readily accessible, though not so exposed that there could be any reading of the numbers of the combination, so as to learn the combination, without removing a portion of the mechanism. The mechanism of these locks was such that the vital parts thereof could readily and quickly- be removed, by one skilled in lock mechanism, from the inside of the doors and then readily taken apart and the combination numbers read. Thus, one so skilled could readily learn the combinations and be enabled to unlock the doors from the outside. One so skilled could also readily replace the parts so removed, without leaving any evidence of the mechanism having been disturbed. The vital parts of the mechanism, capable of being so removed, are so small in volume that they might be absent from a door a considerable period, possibly hours, during the business hours of the day, without their absence being noticed. A considerable number of the private compartments in the vaults were unoccupied; that is, not assigned to any tenants at the time of, and for sometime prior to, the burglary.. The doors of a number of such compartments were unlocked and were left standing ajar, so that the mechanism of the locks on the inside of such doors was readily accessible to anyone in the vaults wherein such compartment doors were unlocked.and stood ajar. The mechanism of those locks could readily have been removed from any of such doors unlocked and standing ajar, and- even taken out of the building, without such removal being discovered for a considerable time, even for days. One skilled in the use and manipulation of such locks could, by taking apart one of them after its removal and examining its mechanism, make a master key with which all of the private compartments or all of the vaults could be unlocked as readily as they could be unlocked by the master key kept by the building management. The information acquired by so removing and examining the mechanism of one of those locks and the making of a master key, capable of unlocking all of them, could be accomplished in less than an hour. One expert witness said that this could be done in thirty minutes, under favorable conditions. The burglary was committed sometime between the closing of the vault doors at the early closing business hours of Saturday, July 22, 1922, and the opening of the vault doors at the beginning of business hours on the morning of Monday, July 24,1922. The particular burglary, charged and relied upon by the prosecution for a conviction of the defendant, consisted of the opening of the vault door on the ninth floor of the building, followed by the opening of several- of the private compartments in that vault and taking therefrom money and Liberty bonds, postal savings stamp certificates and diamonds, aggregating large value. The prosecution proceeded principally upon the theory that the defendant committed the burglary by opening the vault door on the ninth floor by ordinary manipulation of the combination lock on the outside, he having learned the combination in the manner we have above noticed that it was possible for one to so learn the combination, and by opening the inside private compartment doors by a master key, made by him, or caused by him. to be made, from information acquired by the removal and inspection of the mechanism of one of the compartment locks, in the manner above noticed as a possible way in which such information could be acquired. Between the early Saturday closing of business hours of July 22, 1922, and the Monday morning opening of business hours of July 24, 1922, several of the vaults on other floors of the building and the private compartments therein were burglarized, evidently in the same manner as the vault and compartments therein upon the ninth floor were burglarized; all plainly indicating, as the jury could and manifestly did believe from the evidence, as constituting one connected burglarizing plan on the part of the person' or persons committing the several burglaries, including the burglarizing of the vault and compartments therein on the ninth floor. It was the custom of the management of the building to cause the doors of all of the vaults, on all of the floors, to be closed and locked at the close of business hours each day, and kept locked until the opening of business hours of the succeeding business day, so that the vault doors were all closed and locked out of business hours, not only during every evening, night and morning between one day and the following day, but throughout all hours on Sundays and other holidays. The vaults were all so closed and kept closed and locked during the entire period from the early closing hours of Saturday’ afternoon, July 22, 1922, to the morning opening hours of Monday, July 24, 1922, except as they were opened in the commission of the burglaries here in question. The main front door of the building opening on Riverside avenue was, by the management of the building, always closed and locked at midnight following each business day, and remained so closed and locked until the morning of the following day when it was unlocked. When the front door of the building was so kept closed and locked, one entering the building had to do so by going through the basement stairway into the basement from the Stevens street side of the building, on the west. One so entering could then be taken up by the elevator to the several floors above, some employee of the building being generally there available for that purpose. One so entering the building could also go up the stairs to the several floors above. There were also fire escape steps and balconies rendering it possible for one to go from one floor to another, and at least at one point, by the use of a fire escape balcony, a person could get in and out of the building, over another building, without going into the building by either the front door of the side basement stairway door. The appellant was seen in Spokane at different times on Friday, Saturday and Sunday, July 21, 22 and 23, 1922. On at least one or two of these occasions, he was seen in the building” under such circumstances as to suggest that he was there for some questionable purpose. He was not a tenant of the building. When appellant was arrested in San Francisco and informed that he was wanted in Spokane, then manifestly understanding that he was wanted in Spokane to answer to the charge of having committed this burglary, he immediately informed the officers arresting him, in substance, that he had the foundation already laid to beat that charge by evidence of an alibi. He, also, then offered to the officers a large bribe in money and diamonds to let him go, increasing the amount of thé offer upon their refusal. He then, and'later, made statements evidencing his more than ordinary capabilities as a manipulator of safe locks. The appellant did not testify on the trial. The evidence introduced in his behalf was practically wholly in support of his claimed alibi; that is, that at the time of the burglary he was not in Spokane but in Lincoln, Nebraska. One of the items of evidence, tending to show the appellant to be in Lincoln at the time of the burglary, of so near that time as to render it probable that he was there rather than in Spokane at the time of the burglary, was his signature on a Lincoln hotel register, apparently as a guest, under the date of July 20, 1922, which signature, as the jury might well believe from the evidence, was written in a space where some other erased signature had been written. There was no direct evidence introduced by the prosecution of the appellant’s actual commission of, or participation in, this burglary. Other facts will be noticed, as may seem necessary, incident to our discussion of the several claims of error. Since the conviction of appellant is rested wholly upon circumstantial evidence, and his counsel here claim error to his prejudice committed by the trial court in the admission of several items of circumstantial evidence introduced by the prosecution, it seems desirable that, at the outset, we notice some fundamental principles touching the admissibility of such evidence, particularly with reference to the remote, or near, relation of particular circumstances, sought to be proven touching the question of the commission of a charged offense, and of the identity of the accused as the one committing the offense. In the text of 2 Bishop’s New Criminal Procedure, §1078, we read: “As to What Circumstances — are admissible, the only rule is that they must tend to prove the offense and to connect the defendant with it; they may be remote, or they may be near; minute, or of larger dimensions. All will depend upon the particular case.” In 2 Wharton’s Criminal Evidence (10th ed.), § 877, that learned author observes: “There is no test or standard of relevancy from which a rule can be deduced, applicable to all cases, as to what evidence is relevant or irrelevant. The test can be made only in the concrete case. The criterion of relevancy is whether or not the evidence adduced tends to cast any light upon the subject of the inquiry. In circumstantial evidence, we have to deal almost exclusively with inference and deduction, hence, the greater the number of consistent facts, the more certain and complete the deduction. While the rule that the evidence must be relevant to the hypothesis must always be rigidly applied in criminal cases, nevertheless, there should be an enlarged admission of all circumstances that will aid the court and the jury in determining the facts in issue beyond a reasonable doubt.” In Phillips v. Chase, 201 Mass. 444, 87 N. E. 755, Chief Justice Knowlton, speaking for the supreme judicial court of Massachusetts, said: “When circumstantial evidence is largely relied upon to establish an issue, it is inevitable that many matters should be introduced which by themselves alone would be immaterial, although in connection with other evidence they may be helpful in discovering the truth.” In the text of 8 R. C. L. 179, similar general observations are made. These authorities, we think, come as near stating the general rule of admissibility of circumstantial evidence as can be made of general application. This is, after all, necessarily but the general spirit of the law, to be kept in mind as we proceed with our present inquiries, keeping in mind, as we proceed, that this is a case wholly of circumstantial evidence. It is contended, in behalf of appellant, that error occurred, to his prejudice, in the opening statement of the prosecuting attorney, made preliminary to the introduction of evidence in support of the prosecution. The language of the prosecuting attorney, so complained of, is, that “the evidence will further disclose that in his [appellant’s] personal effects there were found certain burglary tools;” this referring to the time of his arrest. At this point, counsel for appellant made strenuous objection to the making of this statement by the prosecuting attorney; his objection being, in substance, that such fact would be, at all events, inadmissible, because it occurred at the time of appellant’s arrest, approximately three years after the alleged commission of the burglary in question. The court permitted the prosecuting attorney to proceed with his statement, not expressly striking out his language so far used, but then admonished the jury as follows: “Let me tell the jury now that this opening statement, that Mr. Leavy [the prosecutor] is now making, is in no sense evidence. He is merely outlining what he expects the witnesses will testify to later on, so you must not consider this as any evidence in the case. Now, Mr. Nuzum [appellant’s attorney], if evidence of this kind is offered, I will take up your motion at that time.” Later, the prosecution sought to make proof accordingly, but after considerable argument, made out of the presence of the jury, touching its admissibility, the trial court expressed an inclination to exclude such evidence because of the lapse of time following the alleged commission of the burglary. Thereupon the prosecution did not press the offer further, though the court did not expressly rule against the admission. The trial judge not only admonished the jury as above quoted, but also, in his tenth instruction to the jury at the conclusion of the trial, expressly instructed the jury in part as follows: “At the beginning of the trial the prosecuting attorney made what is called his opening statement, and, at the beginning of the defendant’s evidence, defendant’s counsel made his opening statement. What counsel said in their opening statements must not be considered by you as evidence in the case. The purpose of the opening statement is not that the attorneys may give testimony, but simply that they may outline to you what they expect to prove by their witnesses.” The former admonition and this later instruction, given by the court to the jury, clearly, we think, cured any possible prejudicial error that may have occurred by reason of the prosecuting attorney’s opening statement and his offer of proof, unless we are to hold that such conduct on the part of the prosecuting attorney was of such a flagrant nature as to become incurably prejudicial. We may assume, for present purposes, that this offered evidence should have been ruled out, as the trial court, in effect, did so rule, but we do not think its inadmissibility was so clearly beyond the realm of legitimate debate as to cause the trial court, or this court, to attribute to the prosecuting attorney bad faith in putting forth his efforts to have it admitted. This, we think, is particularly true, in view of the extraordinary nature of this case and the manner in which the burglary in question was evidently committed. Our decisions in State v. Boone, 65 Wash. 331, 118 Pac. 46, State v. Storrs, 112 Wash. 675, 192 Pac. 984, 197 Pac. 17, and State v. Stevens, 135 Wash. 361, 237 Pac. 723, lend support to our conclusion that there was no error, in any event no incurable error prejudicial to appellant, brought into the ease by this opening statement of the prosecuting attorney or his offer of this evidence, and that the admonition and instruction of the court we have noticed, in any event, cured such possible error. The seemingly most strenuous contention here made in behalf of appellant is that the trial court erred to his prejudice in permitting the prosecution to place before the jury the testimony of three officers, tending to show special skill and capabilities possessed by appellant to commit this burglary in the apparently skilled manner in which it was committed; which testimony, also, incidentally tended to show his criminal connection with the commission of other similar burglaries. The argument of counsel is, in substance, that proof of the capabilities of appellant in that respect was not admissible, and, particularly, that the prosecution thereby unwarrantedly placed before the jury evidence tending to show the commission of other crimes by appellant. This testimony was introduced over timely and appropriate objections of counsel for appellant. We here quote that portion of it to which the objections were directed. An officer was asked, upon direct examination, and answered as follows: “Q. Captain, did you have a conversation with this defendant at any time prior to July, 1922, wherein he discussed with you his ability to enter safes and vault doors that had upon them combination locks? A. I did. Q. Now when did you have this conversation, captain? A. In September, 1918. Q. What did this défendant say to you relative to entering safe doors that were protected by combination locks? A. He said he had done that work — several jobs of that kind. Q. How many jobs, or places, captain? A. At least seven in Seattle, three in Spokane, one in Vancouver, two in Aberdeen and one in Hoquiam. Q. Did he say anything to you in that conversation, or those conversations, as to the kind of buildings where those safes were? A. Office buildings. Q. And as to the day of the week when those jobs were done? A. They were done between Saturday night and Tuesday morn ing — the week end [further answers plainly indicating that the ‘week end’ meant the inclusion of a holiday following Sunday if a holiday occurred on Monday.] Q. Did he state as to the nature of the property he procured? A. He did. Q. What was it? A. Liberty Bonds, Canadian Victory Bonds, War Savings Stamps, diamonds and cash.” This officer was asked, upon cross-examination, and answered as follows: “Q. You testified something about Mr. Edelstein telling you with reference to opening safes and locks— I will ask you if Mr. Edelstein didn’t say to you that each one of those safes were either unlocked or on a half hitch? A. He used the expression ‘short combination’ — they were all on short combinations, all the jobs he did, all the safes he worked from a short combination. Q. Did he explain what that meant? A. He did. Q. What did he say? A. He explained that many business men leave their safes on what he called a short combination, and explained that was turning the dial just a few points one way, and by taking hold of the handle of the safe, by putting pressure on it you could turn the dial back to the number and the safe would open.” An officer, who had brought the defendant from San Francisco to Spokane, was asked, upon direct examination, and answered as follows: “Q. Captain, when did you return to the state of Washington with the defendant? A. The morning of October 30th. Q. Did you have any conversation with this defendant relative to his ability to enter combination locks and safes or vaults? A. I did. Q. When did you have that conversation? A. We left San Francisco in the evening, and the next day I was talking to him practically all of that day. Q. What was the substance of the conversation with reference to his ability to enter doors of safes and vaults that were protected with combination locks? A. He told me that in many cases the safes were left unlocked, and that many others were left, on what he called, a half hitch turn of the tumblers, and frequently he found them that way, and was able to open them without any trouble. Q. What did he say, if anything, with reference to entering safes or vaults here in the city of Spokane? A. He said he had entered the Sherwood Block, the Symons Block and the safe in the Federal Land Bank.” A San Francisco officer, who aided in making the arrest of appellant and who had testified with reference to appellant’s offering a bribe for his freedom, as we have already noticed, further testified as to his conversation at that time with appellant as follows: “I said to Edelstein ‘Izzy, if all they say about you is true, you must be a wonderful man with a safe’ — : and he says ‘I have capabilities, but I didn’t do that Spokane job.’ ” While this court has recognized and adhered to the general rule, that evidence of independent, unrelated crimes having been committed by the accused are not admissible as proof of the commission of the crime for which he is being tried, yet there are well recognized exceptions to this general rule. One is, that evidence, otherwise admissible, does not become irrelevant or incompetent, merely because it also tends to show that the accused has committed another crime, unrelated to the one for which he is being tried. 16 C. J. 588; 8 R. C. L. 199. The following of our own decisions are in harmony with this view of the law: State v. Hyde, 22 Wash. 551, 61 Pac. 719; State v. Leroy, 61 Wash. 405, 112 Pac. 635. So, if this testimony was admissible to prove the special skill possessed by appellant as a manipulator of locks, it was not rendered inadmissible because it tended to prove his criminal connection with other burglaries. Evidence tending in some substantial degree to show that an accused possessed special skill, such as would enable him to commit.the crime for which he is being tried, it apparently having been committed in a man ner requiring such special skill in its execution, we think is admissible. In 1 Wigmore on Evidence (2d ed.), § 83, that learned author says: “As indicating the likelihood of a person doing or not doing an act in question, his physical capacity (or lack of it), his technical skill (or lack of it), and his possession (or lack) of the appropriate means or tools, are usually of sufficient probative value to be admissible. The circumstances of each case usually make it clear whether one of these data is there relevant; and no more detailed rules need to be laid down, nor has any important controversy arisen over the relevancy of this species of evidence. The considerations that have led to exclusion of such facts in a few instances have usually been considerations affecting some other use or aspect of the evidence, with which the present use was confounded. ... As a general principle, then, the existence or lack of the physical capacity, skill, or means to do an act is admissible as some evidence of the possibility or probability of the person’s doing or not doing it.” Having in view the skill which evidently was exercised in the commission of this burglary, and appellant’s opportunity to commit it, we are of the opinion that the testimony of these officers was admissible, as tending to show appellant’s special skill enabling him to so commit the offense. We are also of the opinion that, in the placing of the testimony of these officers before the jury, the prosecution did not incidentally, unwarrantedly place before the jury proof of appellant’s having committed other independent, unrelated crimes. According to their testimony, appellant was informing them of his capabilities as a manipulator of locks; and, to convey that information to them, he emphasized it by stating instances of his actual accomplishments along that line. Contention is made that the trial court erred to the prejudice of- appellant, in permitting proof of the burglarizing of vaults and private compartments therein on other floors of the building, occurring between the early closing business hours of Saturday, July 22, 1922, and the opening business hours of the morning of Monday, July 24, 1922. These burglaries seem so manifestly a part of one plan and system, of which the burglary charged against appellant was also a part, as to render proof of any, or all, of them admissible. 16 C. J. 591. The following of our own decisions are in harmony with this conclusion, though we do not cite them as all being exactly in point: State v. Craemer, 12 Wash. 217, 40 Pac. 944; State v. Burton, 27 Wash. 528, 67 Pac. 1097; State v. McDowell, 61 Wash. 398, 112 Pac. 521, Ann. Cas. 1912C 782, 32 L. R. A. (N. S.) 414; State v. Thompson, 132 Wash. 124, 231 Pac. 461. It is contended that the trial court should not have permitted the engineer of the building, having charge of the keys of the main front door, to testify that the lock of the front door had been tampered with, as was discovered Sunday morning, July 23, 1922, so that the door could not then be unlocked with the key. The engineer testified: “I found that the tumblers had been turned so that the key wouldn’t enter.” Clearly, this was admissible as tending to show an attempt by someone to prevent ready access to the building during the night, and also possibly -with a view of preventing ready access during Sunday, a circumstance to be considered with all the other circumstances, remembering that this is a case wholly of circumstantial evidence. It is contended that the trial judge erred, to the prejudice of appellant, in permitting the manager of the building to testify, on re-direct examination by the prosecuting attorney, in substance, that a detective had told him that appellant had committed the burglaries in question. Prior thereto the manager had testified, at some length, concerning what he had found as to conditions following the burglaries and as to his placing the matter in the hands of the police and their reporting thereon to him. On cross-examination by counsel for appellant, he was quite vigorously questioned touching his conversations with officers, particularly with a detective who was working upon the case; the. cross-examination being a strenuous seeking,- on the part of counsel for appellant, to show what the detective had said, inducing the manager to believe the burglary to have been a so-called inside job; that is, as having been committed by some employee of the building. In an effort, on the part of the prosecuting attorney, to bring out the whole of the conversation between the manager and the detective and to counteract the highly probable impression left by the cross-examination with the jury, the manager was asked by the prosecuting attorney and answered as follows: “Q. Did he [the detective] report to you whose work it was? A. Yes. Q. "What did he tell you? A. He told me that he thought it was Isadore Edelstein had done it.” This answer was allowed by the court to stand, though sought by counsel for appellant to be stricken. Under all the circumstances, it seems to us that we should not now hold this to be reversible error, in view of the manner in which it came into the record. It was, in substance, but a calling for the whole of a conversation, part of which had been called for by the cross-examination of the manager by counsel for appellant. White v. Territory, 1 Wash. 279, 24 Pac. 447; State v. Freidrich, 4 Wash. 204, 29 Pac. 1055, 30 Pac. 328, 31 Pac. 332; State v. Regan, 8 Wash. 506, 36 Pac. 472. Contention is made that the trial court erred, to the prejudice of appellant, by the admission in evidence of diamonds taken from him at the time of his arrest. This objection seems to rest upon the theory that the diamonds so taken from appellant were inadmissible as tending to show a crime committed by him some three years previous. However that may be, these diamonds were admissible in evidence in connection with the testimony of the bribe that was offered by appellant to the officers at the time of the making of his arrest, they being offered as a part of the bribe, together with money. Contention is made against the admission of testimony tending to show the possibility of appellant’s being absent from Spokane, by the aid or-partial aid of aeroplane transportation, at the time of the commission of the burglary; that is, the possibility of his being in Lincoln, Nebraska, and St. Louis, Missouri, as claimed in his behalf, and also in Spokane, when the burglary was committed. It is somewhat difficult for us to follow counsel for appellant touching the question of the admissibility of this evidence. We are unable to see, as the matter is here presented, any argument against the admissibility of this evidence, other than its lack of weight. Indeed, counsel for appellant seem to proceed upon that theory. We are of the opinion that the court did not err in allowing this evidence to go before the jury for whatever it was worth, though apparently it was of but little probative value. ■[9] Contention is made, in behalf of appellant, that the trial court erred, to his prejudice, in admitting in evidence enlarged photographs of-the signature of appellant found upon the Lincoln hotel register under the date of July 20, 1922. These photographs seem to us to have been taken under fair conditions and have a tendency to show that appellant’s signature upon the hotel register, as of that date, was written in a space wherein there had previously been written another signature which had been erased. We are of the opinion that no error was committed in admitting these photographs in evidence, together with the testimony of those who made them, as tending to show that appellant’s claimed alibi was not supported by the evidence he offered in that behalf. Contention is made that the prosecuting attorney, in his closing argument to the jury, made intemperate and unwarranted remarks, prejudicial to the rights of appellant. As the claimed objectionable remarks are presented here, we cannot say that there occurred any reversible error therein. We do not find in the record any objection interposed thereto at the time they were made, nor any attempt to have the trial court then interfere and cheek such argument. The record, as a whole, is suggestive of justification therefor. Observations made by Judge Fullerton in our decision in State v. Evans, 145 Wash. 4, 258 Pac 845, would be, in a large measure, appropriate here. See, also, State v. Armstrong, 37 Wash. 51, 79 Pac. 490; State v. Marion, 68 Wash. 675, 124 Pac. 125; State v. Peeples, 71 Wash. 451, 129 Pac. 108. The trial court’s instructions plainly gave the jury to understand that their verdict must be rested entirely upon the evidence introduced upon the trial, and not upon remarks and argument of counsel, except in so far as such remarks and argument were justified by the evidence introduced. Contention is made that the supplemental information, in so far as it charges the prior conviction of appellant in the Missouri court, is insufficient, in that it failed to charge facts showing that the crime of burglary, of which the appellant was convicted under the laws of Missouri, was a “crime which, under the laws of this state, would amount to a felony.” The habitual criminal statute of this state, applicable to this controversy, reads: “Every person convicted in this state of any crime of which fraud or intent to defraud is an element, or of petit larceny, or of any felony, who shall previously have been twice convicted, whether in this state or elsewhere, of any crime which under the laws of this state would amount to a felony, or who shall previously have been four times convicted, whether in this state or elsewhere, of petit larceny, or of any misdemeanor or gross misdemeanor of which fraud or intent to defraud is an element, shall be punished by imprisonment in the state penitentiary for life.” Rem. Comp. Stat., § 2286. Our decisions in State v. Rowan, 84 Wash. 158, 146 Pac. 374; State v. Gustafson, 87 Wash. 613, 152 Pac. 335; State v. Cotz, 94 Wash. 163, 161 Pac. 1191, and State v. Spencer, 130 Wash. 595, 228 Pac. 689, while not all directly in point here, lend strong support to the conclusion that, since the charge of the Missouri conviction is substantially in the language of our habitual criminal statute, above quoted, it is sufficient as a pleading of the Missouri judgment of conviction for the purpose of this prosecution. The concurring opinion of Judge Chadwick in State v. Cots, supra, we conceive to be a sound statement of law as to the sufficiency of this charge, wherein he said: “When the prosecuting attorney has charged, by simple reference to the judgments, that a party has been convicted three times, he has done all that the law requires, for it is not a question of guilt or innocence, but merely a question involving a state of the record, either in the court where the charge is made, or some other court. It is necessary, when pleading a judgment, to say no more than that a judgment (describing it) was rendered in a certain court at a certain time.” The proof showed, by a duly certified transcript and by testimony as to appellant being the same person convicted in the Missouri court, thát he was therein convicted by final judgment of burglary, and sentenced to imprisonment in the penitentiary of that state for a period of two years. It thus sufficiently appears, we think, that the crime for which he was there so convicted was a crime which, under the laws of this state, would amount to a felony. All burglaries of whatever degree are felonies under the law of this state. Rem. Comp. Stat., §§2253, 2578, 2579 [P. C. §§8688, 8771, 8772]. In the absence of affirmative proof to the contrary, as this case is before us, we must now presume that the burglary, of which appellant was convicted in Missouri, would also be a felony under the laws' of this state. We conclude, therefore, that the judgment of that conviction was sufficiently pleaded and proven. Looking to the avoiding of the effect, in this prosecution, of appellant’s prior conviction, in the superior court for Bang county, of the crime of burglary in the second degree, of which the evidence here was amply sufficient, his counsel offered in evidence his later unconditional pardon thereof by the governor of this state, appellant having at that time been confined and served a portion of his sentence of five to fifteen years to the extent of approximately two years thereof. This offer of proof was by the court rejected, upon the objection. of the prosecuting attorney, as being of no avail to appellant in avoidance of this habitual criminal charge. This, it is contended, was error, the argument being that such pardon so completely obliterated that conviction that it could, in no event, be invoked as a former conviction, as lending support to the habitual criminal charge made against him by this supplemental information. While recognizing that there are conflicting views, entertained'' by the courts of the United States, as to the effect of a pardon upon a prior conviction, when such prior conviction is sought to be invoked in support of an habitual criminal charge, it seems to us that the weight of authority is against the contention here made in behalf of appellant. In 1 Bishop on Criminal Law (9th ed.), § 963, Sub. 4, that learned author says: “It has been held in Ohio that a pardon obliterates an offense and that hence the conviction in regard to which it is granted is not a former conviction within the habitual criminal act. This reasoning is very technical. A person who has received clemency but instead of reforming persists in his evil ways certainly should not as to a subsequent offense be treated better than if the pardon had been denied. Accordingly the Kentucky Court has held that such a pardon does not relieve him from any penal consequences resulting from his subsequent offenses, and this reasoning has been adopted by the United States Supreme Court:” In Herndon v. Commonwealth, 105 Ky. 197, 48 S. W. 989, in what seems to be considered one of the leading decisions touching this question, Judge Hob-son, speaking, for the court, said: “It is also insisted that appellant is not liable for the increased penalty imposed by the statute on a third conviction of felony by reason of the fact that he was pardoned by the governor of the crime of which he was first convicted, and an instruction to this effect was asked and refused on the trial. This question was presented to this court in the case of Mount v. Com., 2 Duv. 93, where it was held that the pardon had not this effect. The court said: ‘The pardon relieved the convict of the éntire penalty incurred by the offense pardoned, and nothing else or more. It neither did nor could relieve from any penal consequence resulting from a different offense, committed after the pardon, and never pardoned. The increased punishment prescribed by the statute for the subsequent offense was no part of the penal consequences of the first offense, but applied exclusively to the last, as aggravated by its repetition of the same crime. The legislature, as required by justice and policy, ought to have provided a severer punishment for repeated than for only one crime; and whether it had done so, by duplicating for a second offense the punishment of the first, or by any other measure of augmentation, cannot be material. In any aspect, the augmented punishment is for the last, and not at all for the first, offense; and, of course, a pardon of the first could in no way or degree operate as a pardon of the last offense, or remission of any portion of the punishment denounced for the perpetration of it.’ This case was afterwards followed in Stewart v. Com., 2 Ky. Law Rep. 386, and it seems to us that the circuit court ruled properly in refusing the instruction asked.” Similar observations were made by Judge Miller, speaking for the New York supreme court in People v. Carlesi, 154 App. Div. 481, 139 N. Y. S. 309, touching the effect of a pardon of the same nature as that here involved, as follows: “The second proposition is based on the following language of Mr. Justice Field, speaking for the majority of the United States Supreme Court in Ex parte Garland (4 Wall. 333, 380), viz: ‘A pardon reaches both the punishment prescribed for the offense and the guilt of the offender; and when the pardon is full, it releases the punishment and blots out of existence the guilt, so that in the eye of the law the offender is as innocent as if he had never committed the offense. If granted before conviction, it prevents any of the penalties and disabilities consequent upon conviction from attaching; if granted after conviction, it removes the penalties and disabilities, and restores him to all his civil rights; it makes him, as it were, a new man, and gives him a new credit and capacity.’ “The appellant cites many cases in which that language has been quoted or referred to with approval, one case in which the precise proposition contended for by him seems to have been decided (Edwards v. Commonwealth, 78 Va. 39), and Bishop on New Criminal Law (Vol. 1, § 919), wherein the author takes the view that a second offense, the first one having been pardoned, is not a second but a first offense. “The precise point does not seem to have been de cided in this State and, so far as the research of Gonnsel goes, has been decided in only two States, the Supreme Court of Appeals of Virginia in Edwards v. Commomwealth (supra) taldng the appellant’s view, and the Court of Appeals of Kentucky holding to the contrary. (Mount v. Commonwealth, 63 Ky. [2 Duval] 93; Herndon v. Commonwealth, 105 id. 197.) The case nearest in point in this state is People v. Price (53 Hun, 185; affd. on the opinion below, 119 N. Y. 650). But the appellant seeks to distinguish that case by the fact that the pardon for the first offense was granted by the Governor of the State of Georgia, and that the decision was put upon the ground that the Legislature of the state of New York was not controlled by the Constitution or laws of the State of Georgia. While that point was made by Mr. Justice Landon, writing for the General Term, his opinion, which was adopted by the Court of Appeals, put the decision on a much broader ground, namely, that the conviction was not obliterated by the pardon but remained as a fact in the past history of the defendant and that the punishment for the second offense was solely for that and not at all for the offense committed in Georgia; and necessarily, the latter proposition is correct, else all the statutes providing for increased punishment for second offenses would be unconstitutional. (See People ex rel. Cosgriff v. Craig, 195 N. Y. 190.) “Manifestly, the language of Mr. Justice Field, quoted supra, is to be read in its bearing upon the precise point before the court. The pardon of this defendant did not make ‘a new man’ of him; it did not ‘blot out’ the fact or the record of his conviction, and of course, the Supreme Court, in deciding that the Congress could not impinge upon the pardoning power of the Executive did not intend to hold that the Executive could blot out a solemn record of the judicial branch of government. (See Roberts v. State of New York, 30 App. Div. 106; 160 N. Y. 217.) The pardon in this case merely restored the defendant to his civil rights. If it had been granted before his term of imprisonment had been served, it would also have relieved the defendant of that. But it did not obliterate the record of his conviction or blot out the fact that he had been con victed. (Matter of-, an Attorney, 86 N. Y. 563.) It relieved the defendant of the consequences which the law attached to his offense. But the defendant is to be punished now solely in consequence of his second offense. The fact of the former conviction is an element merely in determining the criminality of the second offense. (People v. Sickles, 26 App. Div. 470; 156 N. Y. 541; People ex rel. Cosgriff v. Craig, supra.) The legislature of this state has said that one who commits a crime, after having been convicted of another crime, is a greater offender than as though he had not previously been convicted, and the punishment inflicted is solely for the second offense to which a greater degree of criminality is thus attached. That degree of criminality is not at all lessened by the fact of a pardon which assumes his guilt, remits the punishment and affords him an opportunity to become a law-abiding citizen. It was solely within the province of the legislature to attach such greater criminality to the second offense from the mere fact of a conviction for a first, and the Executive by the exercise of the pardoning power could no more interfere with that exercise of legislative power than the legislature could interfere with the power to pardon.” That decision was affirmed upon appeal and this language of the appellate division of the supreme court adopted by the court of appeals in 208 N. Y. 547, 101 N. E. 1114. This reasoning was apparently acquiesced in by the supreme court of the United States, the case being taken by writ of error to that court, in Carlesi v. New York, 233 U. S. 51, though that court dealt principally with the question of whether or not Carlesi’s federal constitutional due process of law guaranties were violated by his conviction, after pardon, as an habitual criminal. In People v. McIntyre, 99 Misc. Rep. 17, 163 N. Y. Supp. 528, the appellate division of the New York supreme court again adhered to this view of the law. The question has not been squarely before this court, but we have at least three decisions, the reasoning of which seems to lend support to this view of the law. In State v. Serfling, 131 Wash. 605, 230 Pac. 847, we held that a pardon did not prevent proof of a prior conviction of crime against a witness from being used in evidence as affecting his credibility. In State ex rel. Edelstein v. Huneke, 138 Wash. 495, 244 Pac. 721, the following observations were made in the majority opinion: “It was said in argument that the habitual criminal proceeding is an independent action on a separate and distinct charge. If by this is meant a separate and distinct offense it must be borne in mind that the statute does not create any offense. It is no crime to be one'‘who has been previously convicted’ no matter how many times. One who has been convicted and served his sentence has paid the penalty of his crime, and may not thereafter be punished again for any or all of the offenses he has committed. Much of the misunderstanding of this and like statutes has arisen from language employed in decisions which seemed to indicate that one who is being tried upon an habitual criminal information is being tried for an offense. The severer penalty provided by statute for one who is an habitual criminal is not imposed for any offense except the last one upon which the defendant has been convicted, and not yet sentenced. The hearing upon the habitual criminal charge is merely for the purpose of determining what manner of man the defendant is, so that the sentence upon the last offense (in this case the burglary charge) can be in accordance with the statute. The question of previous convictions is important only to_ determine whether, taken in conjunction with the last offense, the defendant has shown a persistence in crime which authorizes the severer penalty.” And in State v. Hazzard, 139 Wash. 487, 247 Pac. 957, we held that, following a conviction that resulted in the depriving of the defendant of her license to practice medicine, she being so deprived solely for that cause, a pardon by the governor, though it, in terms, purported to “restore her to all the rights and privileges she forfeited by reason of her conviction,” did not restore her to her prior license rights. These of our decisions somewhat plainly indicate the view of this court that a pardon, however unconditional and absolute, does not make the one convicted “a new person,” as some of the authorities, speaking generally, assert, in the sense that such prior conviction is wiped out for every purpose. The decisions holding to the contrary of this view are those of the Ohio court in State v. Martin, 59 Ohio St. 212, 52 N. E. 188, 43 L. R. A. 94, and the Virginia court in Edwards v. Commonwealth, 78 Va. 39. The former is a rather brief per curiam opinion. The latter, it must be conceded, is an ably argued decision. There have not been brought to our attention any decisions directly in point touching our present problem, other than these Kentucky, New York, Ohio and Virginia decisions. We are of the opinion that, in view of the expressions in our own decisions above noticed and what we conceive to be the weight of authority, we should adhere to the law as announced in the Kentucky and New York decisions above quoted from. We conclude, therefore, that the trial court did not err in excluding proof of the pardon of appellant offered in his behalf. The method of procedure in bringing into the court for trial this habitual criminal charge, supplemental to the principal charge, is again challenged upon constitutional grounds as it was challenged in State ex rel. Edelstein v. Huneke, 138 Wash. 495, 244 Pac. 721, and in 140 Wash. 385, 249 Pac. 784, wherein attempts were made, by prohibition proceedings in this court, to prevent the trial court from proceeding with the trial of the habitual criminal charge. This contention is rested upon the ground that appellant was, in effect, twice placed in jeopardy for the same offense, “contrary to Art. 14 of the Constitution of the United States;” that he has thereby been deprived of his liberty without due process of law “contrary to Art. 14 of the Constitution of the United States; ’ ’ and that such procedure has, in effect, denied to appellant the equal protection of the laws, “contrary to the provisions of the 14th amendment to the Constitution of the United States.” We think these contentions have been decided adversely to appellant by our decisions in State ex rel. Edelstein v. Huneke, 138 Wash. 495, 244 Pac. 721, and 140 Wash. 385, 249 Pac. 784, and we now adhere to that same conclusion. We thus specifically dispose of these Federal constitutional questions, to the end that it be made plain that they have been presented to and decided by us adverse to the claims of appellant. Contention is made that the evidence is not sufficient to support the verdict and final judgment, particularly as to the original substantive charge. We have examined this voluminous record with painstaking care and are well satisfied that this contention cannot be sustained. What we have already said in relating the facts of this case, as the jury might have viewed them and manifestly did view them, we think, is all that need be here said touching this contention, though we think there are some other proven minor circumstances which lend aid in support of the verdicts and judgment. Some other trial errors than those above noticed have been claimed and briefly argued. We have also examined these with care and conclude that they are not of sufficient merit to render detailed discussion of them necessary here. Our ultimate conclusion, therefore, is, that defendant, so far as can be discerned in this record, has had a fair trial, and that the evidence fully justified the jury: First, in finding him guilty of the substantivé charge; and second, in finding him guilty of being an habitual criminal. The judgment is affirmed. Mackintosh, O. J., Main, Tolman, Askren, French, Mitchell, and Fullerton, JJ., concur.

The opinion of the court was delivered by Hadley, J. — The relator applied to the superior court for a writ of mandate directed to tire board of dental examiners of the state of Washington, and to respondents as members constituting said board. At the hearing the following stipulation was filed as embodying the essential facts involved: “It is hereby stipulated and agreed that «I. W. Smith, the applicant herein, for five years last past, but no longer, has been, and at the time of the passage by the legislature-at its regular session of an act to amend sections 4, (5, 8 and 11 of chapter 55 of the session laws of 1893, approved by the Governor March 18, 1901, was, for a fee, treating-diseases or lesions of the human teeth and jaws and correcting malpositions thereof, but that said Smith is not a graduate of a dental college, nor is he a holder of any diploma of any dental college, nor has he ever attended a course of lectures of any dental college, nor has he ever-held any such diploma; that he has never passed any examination for admission to practice dentistry in the state of Washington or elsewhere; that he has never been licensed as a dentist, or been registered as such under the provisions of an act of the legislature of the state of Washington, entitled ‘An act. to regulate the practice of dentistry in the state of Washington, and declaring an emergency,’ approved March 8, 1893, or under any other act.” Upon the above facts the court denied the writ of mandate, entered judgment that relator shall take nothing, and awarded costs to respondents. The relator has appealed. The sole question involved in this case is whether ap pellant is entitled to be registered as a dental practitioner in the state of Washington. Chapter 55, p. 88 et seq., Session Laws 1893, contains an act regulating the practice of dentistry in this state. Section 4 of that act provides that any person who desires to begin the practice >of dentistry after the passage of the act shall file his name •and application for examination with the secretary of the Board of dental examiners, pay the required fee, and present himself before the hoard for examination at the next regular meeting of that body. It is further provided that no person shall be eligible for such examination unless fie shall be of good moral character, and shall present to the board his diploma from some dental college in good standing, with satisfactory evidence of his rightful possession of the same. But, by a special proviso of the section, persons may be admitted to examination who shall .give satisfactory evidence of having been engaged in the practice of dentistry ten years prior to the date of application for examination. Section 8 of the act provides a penalty, by way of fine or imprisonment, for tlie violation of the terms of the statute. The stipulation above set out shows that appellant has never liad a diploma from a dental college, and had practiced dentistry for five years, and no more, before his application for registration was made. It is manifest that by so practicing dentistry he was violating the terms of the law of 1893, since he never passed an examination entitling him to be registered, and was not qualified to be even admitted to examination, either by reason of bolding a diploma from a dental college, or of having practiced the required time. The law of 1893 was amended in 1901. The amending act is found in chapter 152, p. 314, Session Laws 1901. Section 1 of the amending act is an amendment to the above mentioned § 4 of tlie act of 1893. Tlie essential features of tlie former section are repeated in tlie amending section, with the exception that tlie proviso in the former section which admits to examination those who have practiced dentistry for ten years is omitted, and tlie following proviso appears in tlie amended section: “Provided, this section shall not apply to persons engaged in the practice of dentistry at the time of tlie passage of this act who are bona fide citizens of tlie state of Washington.” After the above statute went into effect appellant applied to the board of dental examiners to he registered and licensed as a practicing dentist, and claimed his right thereto under the quoted proviso above. lie claims that, as a citizen of the state, engaged in the practice of dentistry at the time of the passage of the act, he is exempt from all tlie requirements as to examination and is at once entitled to registration. Appellant had been engaged five years in what he calls the practice of dentistry, but under his interpretation of the law one who had been engaged therein hut five days is entitled to the same privilege, and that too without regard to any dental college or other training. Oan it he possible that the legislature intended such an unreasonable and seemingly absurd result? Por years the policy of the state prior to the passage of this act had been to require all persons engaging in the practice of dentistry to pass an examination before the dental hoard of examiners, and for one to even he admitted to such examination lie must have been either a dental college graduate, or a practitioner for ten years. Yet appellant’s contention here would permit one who happened to he a bona fide citizen of the state when the act of 1901 was passed to practice dentistry, although he may have been without learning, experience, or skill in the profes sion. It is true, if such were clearly the legislative intent, it would have to be so held, however unwise such a regulation might be deemed to be. Let us endeavor to discover the legislative meaning. When the act of 1901 ivas passed, all persons who were lawfully engaged in the practice of dentistry in the state had already passed an examination before the board, and there was no necessity for the examination requirements of the new law being applied to them. Hence the proviso exempting them. But the appellant goes further and says the exemption must apply to all others then citizens of the state who were engaged in the practice of dentistry. Were there in fact any others actually engaged in the practice of dentistry, as that term must be understood in this statute ? The act of 1901 was not an original act upon the subject of dentistry. It was an amending act and must therefore be construed in the light of previous legislation upon the subject. The first legislation was in territorial days, and the last, before thel901 amendment, was by the state in 1893. What was it to practice dentistry under the law of 1893 ? It was to pursue a lawful vocation in the manner prescribed by statute. The daily commission of a misdemeanor for five continuing years by violating the law of 1893, as appellant admittedly did, was not practicing dentistry, although he may have performed some acts which dentists perform, and called it practicing dentistry. The amending section must be held to refer to the practice of dentistry as it was then recognized by law. Appellant contends that, in order to give the statute the effect we have stated above, the' word “lawfully” must be read into it. We do not intend to read into the statute anything that is not already there. But it is our duty to ascertain as fully as possible the spirit of the law from the words used, and we think we should presume in this connection that, when the legislature used the words “persons engaged in the practice of dentistry,” it did not intend to include in that class persons who had never complied with existing law entitling them to engage in such vocation, and who had furthermore openly and continuously violated that law. The persons exempted from the examination were those who had complied with the law, for they were , the only ones actually practicing dentistry, as that term must he construed in the light of lawful regulations. Appellant was not included in that class, was not exempt from examination, and was not entitled to he registered as he demanded. That such regulations are within constitutional limitations has already been held hy this court. State v. Carey, 4 Wash. 424 (30 Pac. 729). That decision related to the practice of medicine and surgery, hut the principle is the same. In view of that decision, it seems unnecessary to further discuss that phase of this case, and, indeed, we do not understand appellant to seriously urge that objection. The wisdom of such regulations, pertaining not only to dentistry, hut also to the practice of medicine and surgery, is apparent. It is of the highest importance to the state that suffering and afflicted humanity shall not he subjected to the care and treatment of unlearned and unskilled persons. In its effort to prevent such a misfortune to its people, the state may adopt a. standard for the test of fitness to engage in the work of what should he a learned profession. When that, standard is adopted, those who assume to do the work of such a profession must prove their fitness hy the test of such standard. Otherwise they violate the law and cannot he recognized hy the state as practitioners of a lawful profession when they seek to follow it in an unlawful way. Appellant further urges that the section of the act of 1893 which provides a penalty for practicing dentistry without a license is unconstitutional, for the reason that the title does not specifically state that the act provides for a penalty. The title is as follows: “An act to regulate the practice of dentistry in the State of Washington, and declaring an emergency.” It will be observed that the title is as comprehensive as it well could be. It is very clear from it that the act treats of the general subject of regulating the practice of dentistry. Such regulation is universally understood to be founded in the police power of the state, and such power and regulation, it is well known, can be enforced only by some penal provision. Such a provision is included in the general subject of regulation expressed in the title, and is germane to its purpose. It is true, the act shall contain but one subject, and that shall be expressed in its title. While the act shall contain but one subject, yet there are many phases of that subject that may properly be treated in the same act, just as a work upon the subject of damages may treat upon many phases of the general subject. It is impracticable to indicate in the title of either a book or a legislative act every phase of the general subject that may be treated. The subject of an act being to regulate the practice of a given profession, the legislature may include in the act the means related to the subject for effecting the object sought. The title is sufficient, under the following authorities: Cooley, Constitutional Limitations (6th ed.), pp. 174, 175; Plumb v. Christie, 103 Ga. 686 (30 S. E. 759, 42 L. R. A. 181); State v. Bennett, 102 Mo. 356 (14 S. W. 865, 10 L. R. A. 717); Cohn v. People, 149 Ill. 486 (37 N. E. 60, 23 L. R. A. 821, 41 Am. St. Rep. 304); State v. Gerhardt, 145 Ind. 439 (44 N. E. 469, 33 L. R. A. 313); State v. Yardley, 95 Tenn. 546 (32 S. W. 481, 34 L. R. A. 656); Hartford Fire Ins. Co. v. Raymond, 70 Mich. 485 (38 N. W. 474); Johnson v. Martin, 75 Tex. 33 (12 S. W. 321). We think the lower court did not err in denying the writ asked, and the judgment is affirmed. Fullerton, G. J., and Mount, Anders and Dunbar, J J., concur.

Horowitz, J. Plaintiff seeks review of an appellate court decision that defendants could not be estopped from asserting the defense of usury to plaintiff's action for recovery of amounts due on notes made by defendants. We reverse the Court of Appeals, Division. Two, and remand the case to Pierce County Superior Court for trial on the merits. We take these actions because a borrower under a duty to speak who fails to disclose the illegality of a proposed rate of interest is estopped from asserting the defense of usury against his lender if she rightfully relied on the borrower's advice in making the otherwise usurious loan. I For purposes of considering the appropriateness of summary judgment for the defendants, the facts and reasonable inferences therefrom are set forth in the light most favorable to the plaintiff, as reflected in her pleadings and affidavit. Morris v. McNicol, 83 Wn.2d 491, 519 P.2d 7 (1974). The defendants offered no evidence of the circumstances surrounding the loans on their motion for partial summary judgment. In light of the. foregoing we state the facts of the case as the trial court had the right to find them in light of the plaintiff's uncontroverted affidavit and reasonable inferences therefrom. Mrs. Virginia Liebergesell was asked by defendant Donald Kotowski to invest moneys belonging to her. and to her children in a business operated by Kotowski and codefendant Franklin Evans. Defendants Kotowski and Evans bought, renovated, and then rented or sold old houses as a sideline. On Kotowski's request and advice, plaintiff originally loaned defendants several thousand dollars at 12 percent interest, on the understanding that she also would receive 20 percent of the profits realized on resale or rental of the homes. Mrs. Liebergesell and Mr. Kotowski originally became acquainted through the friendship of their daughters. Plaintiff, a widowed schoolteacher with neither expertise in business nor any knowledge of the concept of usury or that interest rates higher than 12 percent were illegal, relied on Mr. Kotowski for investment advice and regarded him as a financial counselor and guide. Mr. Kotowski was aware of and encouraged that reliance. He urged Mrs. Liebergesell to invest in his business. Mr. Kotowski's fulltime job was as a field auditor for the State of Washington; the job description for all auditing positions with the State requires a thorough knowledge of accounting and a bachelor's degree with a major in that subject. Mrs. Liebergesell appreciated Mr. Kotowski's superior knowledge of financial affairs and considered his advice important in arranging her family's finances. Several months after the series of loans made by Mrs. Liebergesell to the defendants at an interest rate of 12 percent, in September 1975, Mr. Kotowski told plaintiff that bookkeeping on the notes was too complicated to compute her 20 percent profit share, and that as an alternative the notes evidencing Mrs. Liebergesell's loans to the defendants could be written with higher rates of interest. Subsequently, the defendants prepared and signed a series of notes, written on standard promissory note forms, bearing interest at rates from 36 percent, on two notes later consolidated and not sued on here, to 18 percent, on the notes which Mrs. Liebergesell seeks to enforce in this action. Some of the notes were made payable to Mrs. Liebergesell individually; some to her as custodian for her minor children. Mrs. Liebergesell accepted the notes as drawn by defendants; no negotiation with regard to payable interest or terms took place between the parties. Defendants knew the interest rates were usurious and further knew that the plaintiff was unaware of their illegal nature. However, they did not inform her of their usurious character or of the adverse consequences of usury. Mrs. Liebergesell collected a total of $5,207.63 in interest at usurious rates on a total principal of $23,500 on these illegal notes. In early 1977, approximately one and a half years after Mr. Kotowski had first proposed usurious notes in lieu of a share of profits for Mrs. Liebergesell's investment, he proposed a second change in the parties' financial arrangements. Mr. Kotowski told Mrs. Liebergesell that until more houses were sold, he wanted to reduce the interest due on the amounts loaned by plaintiff to 12 percent. Mrs. Liebergesell, still trusting the business advice offered by Kotowski, did not object, and a note was drawn by Mr. Kotowski consolidating the amounts due and setting the interest rate at 12 percent. Unlike the earlier "form" notes used by Mr. Kotowski, the substitute note did not provide for attorney's fees in the event of a lawsuit. The defendants did not inform the plaintiff of this omission; she discovered it herself only after reading the proposed note. In view of the adverse business outlook cited by the defendants in urging her to accept a note with a lesser return, plaintiff objected to the omission of a provision for attorney's fees and refused to accept the note. Mrs. Liebergesell stated that Mr. Kotowski told her that defendant Evans, who works full time at the University of Washington, had threatened to "yell usury." She further stated that these threats were made to force her to agree to the consolidating note at 12 percent. Mr. Kotowski also told her that the rates were not illegal if set by the borrower, as in this case. Finally, Mrs. Liebergesell alleged in her undisputed affidavit that the defendants made it a practice to obtain funds for their business in this manner: by borrowing substantial sums from "unmarried ladies" who presumably are not aware of financial arrangements or usury laws, to set illegal interest rates, and then to threaten to defend suits brought for recovery on notes evidencing the loans with charges of usury instead of paying off the notes. The Court of Appeals granted discretionary review of the trial court's denial of defendants' motion for partial summary judgment. The defendants in their motion had sought to deduct $10,415.26 from the $23,500 due, relying on usury as an affirmative defense pursuant to RCW 19.52.030, which provides a penalty of double the amount paid in illegal interest. Following the rule that the burden is on the moving party to show the absence of a material issue of fact, the trial court had denied the motion because the judge believed from the showing made by the plaintiff that she might be able to prove at trial that the defendants should be estopped from asserting the usury defense. The Court of Appeals reversed, holding that the elements of the defense of usury were present, that the transaction could not be characterized as a joint venture between plaintiff and defendants, and that defendants were not estopped to raise the defense of usury. For the reasons set forth below, we now reverse and remand the case to the trial court for trial on the merits. II Establishment of Usury Defense To establish the defense of usury, a defendant must show: (1) a loan or forbearance, express or implied, of money or other negotiable tender; (2) an understanding between the parties that the principal must be repaid; (3) the exaction of a greater rate of interest than is allowed by law; and (4) an intention to violate the law. Flannery v. Bishop, 81 Wn.2d 696, 504 P.2d 778 (1972). In this case, there was a loan made by plaintiff, to be absolutely repaid by the defendants, at interest rates greater than 12 percent. The Court of Appeals has held that the intent necessary to satisfy requirement (4) is the parties' intention merely to enter into the transaction. The intent thus need not be wrongful or calculated to violate the usury law. Tacoma Commercial Bank v. Elmore, 18 Wn. App. 775, 781, 573 P.2d 798 (1977). The parties have not addressed this issue and we therefore do not decide if Mrs. Liebergesell had the requisite intent to fulfill the requirements of the defense of usury. We assume, without deciding, that defendants have the right to assert the affirmative defense that the transactions were usurious if they are not otherwise estopped from doing so. The plaintiff contends, however, that even though the four elements necessary to establishment of the defense may have been met, the defendants should be precluded from asserting usury because of the parties' relationship in this case. Ill Estoppel From Asserting Usury Defense We have never before examined the effect of the defendant borrower's role in initiating or controlling a loan transaction on his ability to later raise the defense of usury. However, in the great majority of states in which the question has been considered, the courts have estopped a borrower who initiated a transaction at an illegal rate of interest from setting up the defense of usury. Annot., 16 A.L.R.3d 510, 513-16 (1967). At the very least, the borrower has been precluded from recovering statutory penalties for usury. 16 A.L.R.3d at 516-17. We are convinced that the general doctrines of estoppel compel us to join the majority of jurisdictions in refusing to allow the defendant to assert usury in cases in which the elements of estoppel exist. This court has refused in the past to estop a usury defense because of exculpatory actions, such as a disclaimer of the right to any usurious interest, taken by the borrower after the making of the illegal loan. Home Sav. & Loan Ass'n v. Sanitary Fish Co., 156 Wash. 80, 286 P. 76 (1930); Hopgood v. Miller, 107 Wash. 449, 181 P. 919 (1919). However, there is nothing to suggest that the general doctrine of estoppel, developed to prevent the assertion of other defenses in the law, should not apply to the defense of usury. As in other areas of the law, the general theory underlying estoppel of the usury defense is that an individual should not benefit from his own wrong. 16 A.L.R.3d at 513. If the usury defense were allowed in this case, the borrowers could avoid total repayment of even the principal due because of the statutory penalties for usury. This would be true even though, while under a duty to speak, the borrowers had induced the lender to enter into a transaction at the illegal rate by failing to tell her of its usurious nature. To avoid such a result, estoppel should apply as it does elsewhere in the law of this state. A Estoppel in General Estoppel requires: (1) an admission, statement, or act inconsistent with the claim afterwards asserted; (2) an action by the other party on the faith of such admission, statement, or act; and (3) an injury to the other party if the claimant is allowed to contradict or repudiate his earlier admission, statement, or act. Arnold v. Melani, 75 Wn.2d 143, 147, 437 P.2d 908 (1968). In the instant case, the alleged acts of defendants in soliciting loans at illegal rates of interest are inconsistent with their later claims of usury. If they are allowed to make the claim, the plaintiff lender will be injured through the penalties imposed by the usury laws. However, in order for estoppel to be invoked the reliance reflected in element (2) of the requirements for estoppel must be justified. "Not all those who rely upon another's conduct or statements may raise an estoppel. Rather it is only those who have a right to rely upon such acts or representations." Leonard v. Washington Employers, Inc., 77 Wn.2d 271, 280, 461 P.2d 538 (1969). Thus, the question of whether an estoppel may be asserted depends on the plaintiff's right to rely on defendants' representations, either explicit or implied through their failure to speak, regarding the validity of the loan. B Plaintiff's Right To Rely Generally, participants in a business transaction deal at arm's length; it has been said that an individual has no particular duty to disclose facts nor any particular right to rely on the statements of the party with whom he contracts at arm's length. However, the existence of a fiduciary relationship between the parties and the general duty to contract in good faith may make it possible for an individual to rightfully rely on statements made by another with whom he contracts or on the validity of a transaction based on a failure to disclose relevant information concerning the agreement entered into between them. 1. Fiduciary Relationship. In some circumstances a fiduciary relationship which allows an individual to relax his guard and repose his trust in another may develop. Moon v. Phipps, 67 Wn.2d 948, 954, 411 P.2d 157 (1966). The Restatement of Contracts describes such a fiduciary relationship as one in which one party "occupies such a relation to the other party as to justify the latter in expecting that his interests will be cared for ..." Restatement of Contracts § 472(1)(c) (1932); see also comment c (describing the circumstances under which such a "fiduciary position" may arise). Such a fiduciary relationship creating justifiable reliance could be thought to have developed between plaintiff and defendant Kotowski if plaintiff's allegations regarding the source and extent of her trust in Mr. Kotowski were confirmed at trial. In refusing to affirm the trial court's ruling that an estoppel might have been shown by the plaintiff had she been allowed to proceed to proof at trial, the Court of Appeals relied on the fact that most of the cases estopping the usury defense involved attorneys who borrowed from clients. The appellate court reasoned that because no legally established fiduciary relationship, such as that between attorney and client, existed between the parties, no estoppel could arise. A fiduciary relationship arises as a matter of law between an attorney and his client or a doctor and his patient, for example. But a fiduciary relationship can also arise in fact regardless of the relationship in law between the parties. Salter v. Heiser, 36 Wn.2d 536, 550-55, 219 P.2d 574 (1950). A confidential or fiduciary relationship between two persons may exist either because of the nature of the relationship between the parties historically considered fiduciary in character; e.g., trustee and beneficiary, principal and agent, partner and partner, husband and wife, physician and patient, attorney and client; or the confidential relationship between persons involved may exist in fact. McCutcheon v. Brownfield, 2 Wn. App. 348, 356-57, 467 P.2d 868 (1970). See also Restatement of Contracts § 472, comment c at 898 (1932) ("A fiduciary position . . . includes not only the position of one who is a trustee, executor, administrator, or the like, but that of agent, attorney, trusted business adviser, and indeed any person whose relation with another is such that the latter justifiably expects his welfare to be cared for by the former."). Whether such a fiduciary relationship existed in fact in this case depends on the development of factual proof. The facts alleged by the plaintiff in her affidavit in response to the defendants' motion for partial summary judgment, when considered in a light most favorable to the plaintiff, were sufficient to raise a question of fact which prevented summary judgment. For instance, in Salter v. Heiser, supra, lack of business expertise on the part of one party and a friendship between the contracting parties were important in establishing the right to rely. Graff v. Geisel, 39 Wn.2d 131, 141-42, 234 P.2d 884 (1951). Superior knowledge and assumption of the role of adviser may contribute to the establishment of a fiduciary relationship. Friendship seemed a determinative element under the facts of Gray v. Reeves, 69 Wash. 374, 376-77, 125 P. 162 (1912): A point is made that Mr. Gray was a shrewd and successful business man and ought not to have been misled by promises that, when revealed in the courtroom, seem to be unreasonable. But in this appellants have overlooked an element which disarms caution; that is, friendship. . . . The impulse that leads men to trust those in whom they have confidence cannot be ignored by the courts. Reputation for integrity or for knowledge of a given subject would be worth nothing if its possessor could not assume that others would believe in him or accept his opinion. Were the plaintiff's statements as set forth in her uncontroverted affidavit to be accepted at trial, she could establish a fiduciary relationship as a matter of fact between the parties. She could thus assert a right to rely on defendant's actions and to estop the application of the usury defense. 2. Contractual Good Faith. On remand, even if the plaintiff is unable to prove that the defendants breached a fiduciary duty to disclose that the proposed agreements were usurious, defendants may have breached their contractual duty to deal in good faith by failing to inform the plaintiff that the interest rates were illegal and unenforceable. The law cannot allow contracting parties to deceive one another when there is a duty to act in good faith. The law of contracts reflects an evolving trend towards an interpretation of "freedom of contract" acknowledging the parties' duty to deal in good faith with one another. Seventy years ago, this court noted that "the tendency of the more recent cases has been to restrict rather than extend the doctrine of caveat emptor." Wooddy v. Benton Water Co., 54 Wash. 124, 127, 102 P. 1054 (1909). That continuing trend is reflected in several areas of the law of contract. For instance, this requirement of contractual fair dealing is found in section 1-203 of the Uniform Commercial Code, RCW 62A.1-203: Obligation of good faith. Every contract or duty within this Title imposes an obligation of good faith in its performance or enforcement. The courts of this state have used RCW 62A.1-203 in interpreting the provisions of the U.C.C. in a manner emphasizing good faith dealings in the performance of contracts. See Peter Pan Seafoods, Inc. v. Olympic Foundry Co., 17 Wn. App. 761, 770, 565 P.2d 819 (1977). The code has often been used as an analogy to situations that are not explicitly covered by its provisions. See, e.g., Nevada Nat'l Bank v. Huff, 94 Nev. 506, 582 P.2d 364 (1978); Sunco Mfg. Co. v. Hargrove, 581 P.2d 925 (Okla. App. 1978). It reflects principles of contract law which often apply to the making and performance of agreements governed by our laws. That is the case in section 1-203. A similar requirement of good faith in disclosing relevant facts while negotiating a contract can be seen in many vendor/purchaser cases in which buyers have recovered against sellers who failed to disclose information relevant to the subject matter of the agreement. See, e.g., Obde v. Schlemeyer, 56 Wn.2d 449, 353 P.2d 672 (1960) (liability for failure to disclose termite damage to apartment house); Ikeda v. Curtis, 43 Wn.2d 449, 261 P.2d 684 (1953) (liability for failure to disclose that hotel's income was largely derived from acts of prostitution); Sorrell v. Young, 6 Wn. App. 220, 491 P.2d 1312 (1971) (liability for failure to disclose that residential lots were fill dirt). The parties in these and other vendor/purchaser cases were strangers before the litigated transactions; no duty to disclose independent of the contractual relationship itself could have arisen to explain the court's willingness to hold the vendors responsible for failing to disclose defects in property sold by them to the purchasers. The cases considering the duty to disclose in cases such as these speak of the vendor's silence as "fraudulent concealment", a species of fraud. The law has not yet acknowledged a general requirement of full disclosure of all relevant facts in all business relationships. However, it is clear from these cases that the duty to disclose relevant information to a contractual party can arise as a result of the transaction itself within the parties' general obligation to deal in good faith. See Restatement of Contracts § 472 (1932). If in the exercise of good faith the defendants should have revealed to Mrs. Liebergesell the illegality of the proposed loans, they breached a contractual duty of fair dealing which would prevent them from asserting the usury defense. Having established that plaintiff might be able to prove her right to rely on defendants, the question remains whether defendants engaged in any admission, statement, or act which would justify estoppel of later inconsistent claims. C Defendant's Actions Estopping Usury Defense Defendant Kotowski solicited the loans made at usurious rates by Mrs. Liebergesell in this case. In doing so, he concealed from plaintiff the fact that the proposed interest rates were illegal under the law of this state. If the plaintiff had a right to rely on defendants, such failure to apprise her of the contents and applicability of the usury statutes is sufficient to estop the defendant from asserting the defense of usury now. The case is similar to Boonstra v. Stevens-Norton, Inc., 64 Wn.2d 621, 393 P.2d 287 (1964), in which a broker failed to tell an investor who relied on him for financial advice that a proposed investment was of a limited and encumbered nature. In Seals v. Seals, the Court of Appeals acknowledged that no fiduciary relationship as a matter of law existed between the parties in Boonstra. Seals v. Seals, 22 Wn. App. 652, 655-56, 590 P.2d 1301 (1979). Nevertheless, the court in Boonstra stated that, although there was no "wilful withholding" of documents containing information relevant to the offered investment: [T]here was a duty to disclose the information appellant Eossessed and of which respondent was ignorant. Here, ecause of the superior business acumen and experience of appellant as compared with respondent, because of the superior factual knowledge of the one as against the factual ignorance of the other, and because appellant's officer knew respondent was relying on his superior knowledge, experience and judgment, there existed a quasi-fiduciary relationship, if not an actual one, that brings the case within the rule that a "... party to a business transaction is under a duty to excercise [sic] reasonable care to disclose to the other before the transaction is consummated . . . such matters as the other is entitled to know because of a . . . relation of trust and confidence between them, ..." Restatement, Torts § 551(2)(a), p. 117. Boonstra v. Stevens-Norton, Inc., supra at 625. See also Sigman v. Stevens-Norton, Inc., 70 Wn.2d 915, 425 P.2d 891 (1967); Hutson v. Wenatchee Fed. Sav. & Loan Ass'n, 22 Wn. App. 91, 588 P.2d 1192 (1978). The court in Boonstra rejected the broker's argument that the lender could not rely on his failure to disclose the encumbrances because they were a matter of public record because "'wrongdoers cannot shield themselves from liability by asking the law to condemn the credulity of their victims.'" Boonstra v. Stevens-Norton, Inc., supra at 626, quoting Cunningham v. Studio Theatre, Inc., 38 Wn.2d 417, 425, 229 P.2d 890 (1951). See also Ikeda v. Curtis, supra. It is irrelevant that in this case the information of which Mrs. Liebergesell should have been apprised was contained in the usury statute rather than in the financial or physical facts relevant to the loans. If the defendants had a duty to disclose relevant facts to plaintiff, the existence and application of the usury laws was a relevant matter which should not have been concealed. The failure to state the contents of the applicable statutes would be actionable. See Burien Motors, Inc. v. Balch, 9 Wn. App. 573, 513 P.2d 582 (1973) (liability for failure to disclose zoning restrictions which made intended use of property illegal). Thus, if the relationship or dealings of the parties was such that defendants had a duty to disclose, and plaintiff had a right to rely on their disclosure of relevant facts and circumstances, the defendants' failure to apprise Mrs. Liebergesell that the usury laws provided a severe penalty for the exaction of the interest rates suggested and offered by the defendants would estop them from asserting the defense at this time. IV Finally, assertion of the defense in this case does not, as noted by the Court of Appeals, fulfill the public policy of the usury laws: [The usury statute] is designed to protect those who by adversity and necessity of. economic life are driven to borrow money at any cost. The protection granted is based on the fact that many borrowers are powerless to resist the avarice of the money lenders. Baske v. Russell, 67 Wn.2d 268, 273, 407 P.2d 434 (1965). When the transaction is suggested, initiated, and controlled by the borrower, who acts as financial adviser to the lender justifiably relying on his advice, that public policy is not fulfilled by allowing the defendant to assert the defense of usury. To hold otherwise would encourage the borrower to induce the uninformed lender to charge as much interest at an illegal rate as possible, for then when the time came to collect a judgment for exaction of usurious interest, the borrower would recover not only the interest paid, but twice that amount, pursuant to the penalty provisions of RCW 19.52.030. The case is reversed for further proceedings consistent with this opinion. Utter, C.J., and Rosellini, Stafford, Wright, Brachtenbach, Hicks, and Williams, JJ., concur. Dolliver, J., concurs in the result. This principle of good faith in contractual dealing was known by and applied at the time of the Romans. The concept of the bonae fidei contract in the Roman law governing consensual contracts required absolute good faith between the agreeing parties under appropriate circumstances: [I]t was bad faith not only if one party actively deceived the other on some material point, but even if he did no more than passively to acquiesce in the other's self-deception. B. Nicholas, An Introduction to Roman Law 176 (1962). See also W. Buckland & A. McNair, Roman Law and Common Law (1936); J. Jolowicz, Historical Introduction to the Study of Roman Law (1961). This section of the Restatement sets out those circumstances in which a contracting party is required to disclose relevant facts: § 472. When Lack of Disclosure Is Not Privileged. (1) There is no privilege of non-disclosure, by a party who (b) knows that the other party is acting under a mistake as to undisclosed material facts, and the mistake if mutual would render voidable a transaction caused by relying thereon, or (c) Occupies such a relation to the other party as to justify the latter in expecting that his interests will be cared for . . . There can be no question as to the materiality of the usury statute, and defendants' knowledge of its materiality, in this case. See Bank of Ellensburg v. Palatine Ins. Co., 82 Wash. 55, 143 P. 447 (1914).

Steinert, J. By an amended information filed in the superior court for Lewis county on May 7, 1935, Bob Brandon, the defendant named in the accusation, was charged with the crime of murder in the first degree. Upon his arraignment on August 20,1935, he was duly informed, by the court, of the nature of the information and was asked whether he had counsel, to which he replied in the negative. He was then asked whether he desired the services of an attorney and again answered in the negative. In response to the further question whether he was ready to plead to the information, he replied that he would enter a plea of guilty of murder in the second degree.. Thereupon the prosecuting attorney announced that such a plea would be acceptable to the state of Washington. The court, expressing its opinion that murder in the second degree is an included offense within the crime of murder in the first degree, with which latter offense the defendant had been charged, and¡ being fully advised in the premises, accepted defendant’s plea of guilty of murder in the second degree and ordered that such plea be entered of record. The defendant was then asked by the court whether he had any legal cause to show why judgment should not immediately be pronounced against him, to which he replied that he had none except as he had theretofore stated. No sufficient cause to the contrary being shown or appearing, the court rendered judgment convicting the defendant of murder in the second degree and imposing a sentence of confinement in the state penitentiary for a period of hot less than twenty-five years, nor more than thirty-five years. Upon the entry of judgment and sentence, a warrant of commitment was issued, and pursuant thereto defendant was confined in the state penitentiary, where he has remained ever since. Nine years later, on April 13, 1944, defendant filed in this court his petition for a writ of habeas corpus, seeking' his discharge from imprisonment in the penitentiary and asserting that the judgment of conviction and sentence is void because no jury was ever impaneled to determine the “degree” of murder of which he was guilty, contrary to the mandate of the state constitution, the statutes of this state, and the decisions of this court. The matter was referred by this court to the superior court for Thurston county, which latter court, after due and regular hearing, rendered a memorandum opinion declaring that the defendant was entitled to have the degree of his crime fixed by a jury, and thereupon entered an order directing the superintendent of the penitentiary to deliver the defendant to the sheriff of Lewis county to be held by the sheriff until otherwise ordered by the superior court for that county. From that order, the state of Washington has appealed to this court. We shall hereinafter refer to the state as appellant, and to the defendant as respondent. The question presented for our decision is whether, under the facts above stated, the superior court for Lewis county had authority originally to enter a valid judgment of conviction and sentence,' and to issue a commitment thereon, without first impaneling a jury to hear testimony and determine the degree of murder of which respondent was guilty and the punishment therefor. ' 1! Respondent’s argument is based fundamentally upon Art. I, § 21, of the state constitution, which provides that the right of trial by jury shall remain inviolate.' His contention in this respect is that if, at the time of the adoption of the constitution, one accused of murder was entitled to a jury trial, neither the legislature nor the judiciary has the power to alter that right. No one will deny that at and prior to the time of the adoption of our state constitution, in 1889, the right of trial by jury had an established existence in the territory of Washington, Laws of 1854, p. 118, § 101; Code of 1881, chapter 87, p. 202, § 1078. It is noteworthy, however, that those legislative acts, which relate to criminal procedure, prescribed that trial by jury should be had on issues of fact joined upon an indictment (or information, as provided in chapter 28, Laws of 1891, p. 58, § 66 [Rem. Rev. Stat., § 2137 (P. P. C. § 140-3)]). That fact should be here kept in mind. It is undoubtedly true that, under the constitutional provision referred to above, the right of trial by jury may not, by legislative or judicial- action, be annulled, nor be so impaired, obstructed, or restricted as to make of it a nullity. That does not mean, however, that a trial by jury is imperative and compulsory in every instance, regardless of whether or not the accused by his plea has raised an issue of fact triable by a jury. The purpose of the constitutional provision was to preserve to the accused the right to a trial by jury as it had theretofore existed; it was not the purpose of the fundamental enactment to render the intervention of a jury mandatory, in the face of the accused person’s voluntary plea of guilty to the charge, where no issue of fact was left for submission to, or determination by, the jury. In this state a person who has been informed against or indicted for a crime may be convicted in any one of three ways: (1) by admitting, in his plea, the truth of the charge; (2) by confession in open court; or (3) by the verdict of a jury, accepted and recorded by the court. Rem. Rev. Stat., § 2309 [P. P. C. § 120-9]. There are, likewise, in this state but three pleas to an indictment or information: (1) guilty; (2) not guilty; and (3) a former judgment of conviction or acquittal of the offense charged. Rem. Rev. Stat., § 2108 [P. P. C. § 121-21]. A plea of guilty has the same effect in law as a verdict of guilty, except that, upon leave of the court, it may be withdrawn and another plea substituted therefor at any time before the rendering of final judgment and sentence thereon. State ex rel. Lundin v. Superior Court, 102 Wash. 600, 174 Pac. 473. See, also, State v. Liliopoulos, 165 Wash. 197, 209, 5 P. (2d) 319. Such plea is a confession of guilt and is equivalent to á conviction, leaving no issue for the jury, except in those instances where the extent of the punishment is to be imL posed or found by the jury. By pleading guilty the defendant admits the acts well pleaded in the charge, waives all defenses other than that the indictment or information charges no offense, and waives the right to trial and the incidents thereof. 22 C. J. S. 655, Criminal Law, § 424; 14 Am. Jur. 952, Criminal Law, § 272. In Cooke v. Swope, 28 F. Supp. (D. C. Wash.) 492, which arose on a petition for writ of habeas corpus, the court, in defining the effect of a plea of guilty, said: “It is a ‘record of admission of what is well alleged in the indictment.’ Bishop’s New Criminal Procedure, 2nd Ed. 1913, Sec. 795.2; 16 Cor. Jur. pp. 394, 400. It is a waiver of trial and all the incidences of it. See Hallinger v. Davis, 1892, 146 U. S. 314, 13 S. Ct. 105, 36 L. Ed. 986; United States v. Norris, 1930, 281 U. S. 619, 50 S. Ct. 424, 74 L. Ed. 1076.” Many of the cases hold that a plea of guilty waives all constitutional guaranties with respect to the conduct of criminal prosecutions, but in our opinion such a plea does not have that effect in those instances where the jury is required to fix the penalty, as, in this state, in murder in the first degree. Rem. Rev. Stat., § 2392 [P. P. C. § 117-5]. It will be borne in mind, however, that in the case at bar the crime to which the respondent entered a plea of guilty was not murder in the first degree, but only murder in the second degree, for which the statute itself, Rem. Rev. Stat., § 2393 [P. P. C. § 117-7], peremptorily fixes the punishment at not less than ten years imprisonment in the state penitentiary. A jury would have no voice in the matter of the punishment for that offense because, upon a plea of guilty, no issue bi fact is involved and hence no further trial is required. At this point, also, we note that we are- not here presented with a situation where an accused person, after pleading not guilty, waives a jury trial and goes to trial before the court sitting alone. In such situations, this court has held that, under Rem. Rev. Stat., § 2309, one charged with the commission of a crime may not waive trial by jury unless in his plea he admits the truth of the charge or in open court confesses his guilt. State v. Karsunky, 197 Wash. 87, 84 P. (2d) 390; State v. McCaw, 198 Wash. 345, 88 P. (2d) 444. That again, however, is not the situation presented by this case. The respondent did not enter a plea of not guilty, nor did he go to trial upon such a plea. On the contrary, he pleaded guilty, as he had the right to do. State v. Horner, 21 Wn. (2d) 278, 150 P. (2d) 690. By such plea he waived the right to trial upon a charge of murder in the second degree, wherein the jury would have had no part in fixing the punishment. We conclude that, in this case, there was no constitutional barrier against the validity of the judgment of conviction and sentence entered by the trial court. Respondent next, and most confidently, bases his argument on Laws of 1854, p. 115, § 87, carried progressively forward into Rem. Rev. Stat., § 2116 [P. P. C. § 121-35], which reads: “If, on the arraignment of any person, he shall plead guilty, if the offense charged be not murder, the court shall, in its discretion, hear testimony, and determine the amount and kind of punishment to be inflicted; but if the defendant plead guilty to a charge of murder, a jury shall be impaneled to hear testimony, and determine the degree of murder and the punishment therefor.” (Italics ours.) At the time of the original enactment of this legislation in 1854, the penalty for murder in the first degree was death, and death alone. Laws of 1854, p. 78, § 12. The penalty for murder in the second degree was imprisonment in the state penitentiary for a term of not less than ten years nor more than twenty years. Laws of 1854, p. 78, § 13. The penalty for'manslaughter was imprisonment in the penitentiary for not less than one year, nor more than twenty years, and the imposition of a fine not exceeding five thousand dollars. Laws of 1854, p. 79, § 21. In that same legislative act various other transgressions were made criminal offenses and, without being classified or given specific- appellations, were made punishable by imprisonment for not less than a specified number of years, or by a fine in a variable amount, or by both. Then, in an accompanying act, in Laws of 1854 (p. 121, § 128), it is provided: “When the defendant is found guilty, the jury must state in their verdict the amount of fine, and the punishment to be inflicted.” (Italics ours.) Thus it will be seen that under the act of 1854 the jury was required to determine and, in its verdict, establish the degree of the crime, in a case where degrees were involved, and in all cases to fix the punishment to be inflicted. This was true not only with respect to the extended category of crimes wherein the penalties were variable but also with respect to the specific crime of murder in the first degree wherein the invariable penalty was death. In 1869 the territorial legislature passed an act amenda-tory of the act of 1854, and in the later act provided that when a defendant is found guilty, the court, and not the jury, shall fix the amount of fine and the punishment to be inflicted. Laws of 1869, p. 198 et seq., § 258 (now Rem. Rev. Stat. § 2172 [P. P. C. § 140-51]). Section 12 of the act of 1869, retained, however, that provision of the act of 1854 which made death the exclusive penalty for murder in the first degree. In 1909, the state legislature passed an act which provided that murder in the first degree shall be punished by death or by imprisonment in the state penitentiary for life, in the discretion of the court, and that murder in the second degree shall be punished by imprisonment in the penitentiary for not less than ten years. Chapter 249, Laws of 1909, p. 890 et seq., §§ 140, 141, pp. 930, 931. In 1913, the death penalty was abolished and the crime of murder in the first degree was made punishable by imprisonment for life in the state penitentiary. Chapter 167, p. 581, § 1, Laws .of 1913. Finally, in 1919, the legislature enacted chapter 112, Laws of 1919, p. 273 (now Rem. Rev. Stat., § 2392), which, after defining murder in the first degree, provides: “Murder in the first degree shall be punishable by imprisonment in the state penitentiary for life, unless the jury shall find that the punishment shall be death; and in every trial for murder in the first degree, the jury shall, if it find the defendant guilty, also find a special verdict as to whether or not the death penalty shall be inflicted; and if such special verdict is in the affirmative, the penalty shall be death, otherwise, it shall be as herein provided ” (Italics ours.) The penalty for murder in the second degree, prescribed by the 1909 act, however, was not changed and is still imprisonment in the state penitentiary for not less than ten years. Rem. Rev. Stat., § 2393. The recital of these legislative enactments and changes therein since 1854 demonstrates that at the present time the court, and not the jury, fixes the penalty, in accordance with the provisions of the relevant statutes, except in the one instance wherein a trial is had for murder in the-first degree. In the latter event, if the accused is found guilty, the jury must render a special verdict as to whether or not the death penalty shall be inflicted. There is, therefore, in such instance, an issue to be determined by the facts in the particular case, which issue the jury alone can, and must, decide. In all other instances, there is no such issue, and hence there is nothing for the jury to determine. As stated in the earlier part of this opinion, in our discussion of the constitutional question, a plea of guilty has the same effect as a verdict of guilty, unless by leave of court the plea is withdrawn and another plea substituted therefor before final judgment and sentence. In this case, respondent’s plea of guilty of murder in the second degree has never been withdrawn, nor has another plea been substituted in place thereof. The question of punishment therefore never became one requiring consideration by the jury. To hold otherwise would be to say that upon a conviction of the crime of murder in the second degree, the jury has the authority and power to determine whether the penalty should be death or imprisonment in the penitentiary. Manifestly, that is beyond the province of the jury. Respondent further contends that, had a jury been impaneled, it would have been empowered and would have had the right to find, under Rem. Rev. Stat., § 2116, as quoted above, that respondent was guilty of only manslaughter instead of murder in the second degree. It will be noted that the statute, Rem. Rev. Stat., § 2116, speaks of “the degree of murder,” not the degree of crime. When that statute was passed in 1854, the law defined murder in the first degree, murder in the second degree, manslaughter, and various other offenses. Laws of 1854, pp.. 78 to 82, §§11 to 39, inclusive. However, the statute created but two degrees of murder: (1) the killing of a human being purposely, with deliberate and premeditated .malice, and (2) the killing of a human being purposely and maliciously, but without deliberation and premeditation. Manslaughter was a separate and distinct crime, resulting from unlawfully killing a human being, without malice express or implied, either voluntarily upon sudden heat, or involuntarily but in the commission of some unlawful act. In other words, the lowest degree of murder was murder in the second degree. In 1909, the legislature adopted the broader and more general term of “homicide,” defining and classifying it thus: “Homicide is the killing of a human being by the act, procurement or omission of another and is either (1) murder, (2) manslaughter, (3) excusable homicide or (4) justifiable homicide.” Rem. Rev. Stat., § 2390 [P. P. C. § 117-1]. The four categories are then segregated and specifically defined in successive sections, from § 2392 to and including §2406 [P. P. C. §§ 117-5 to 117-33]. Again, however, the classification and definitions recognize but two degrees of murder, while, manslaughter is incorporated in a separate and distinct class. Although manslaughter is included, as a matter of law, in the crime of murder in either the first or second degree, nevertheless before a jury can properly find a verdict as for the lesser offense, there must be evidence of the facts constituting such offense. State v. Pepoon, 62 Wash. 635, 114 Pac. 449; State v. Ash, 68 Wash. 194, 122 Pac. 995; State v. Hiatt, 187 Wash. 226, 60 P. (2d) 71. In the case at bar, there was no such evidence, for the simple reason that respondent, having pleaded guilty to the charge of murder in the second degree and thereby admitting the truth of the charge, precluded himself from offering testimony which might in any event have established that he was guilty of only manslaughter. Rem. Rev. Stat., § 2167 [P. P. C. § 140-39], provides that upon an indictment or information for an offense consisting of different degrees the jury may find the defendant not guilty of the degree charged in the indictment or information, and guilty of any degree inferior thereto, or of an attempt to commit the offense. Rem. Rev. Stat., § 2168 [P. P. C. § 140-41], provides that in all other cases the defendant may be found guilty of an offense, the commission of which is necessarily included within that with which he is charged in the indictment or information. In all instances, however, a verdict finding the defendant guilty of the lesser degree or of the included offense must be supported by evidence substantiating the commission of such lesser degree or included offense. Such evidence can be produced, however, only where there is a trial, not upon a plea of guilty. While manslaughter is sometimes loosely spoken of as a degree of murder, it is actually not so, and has never been so denominated by any statute of this state. Although it is an included offense within the crime of murder, it is nevertheless a distinct crime of itself. 26 Am. Jur. 160, Homicide, § 9; 29 C. J. 1125, Homicide, § 112; 40 C. J. S. 901, Homicide, § 39. The decisions of the various courts fully support that statement. In Folks v. State, 85 Fla. 238, 95 So. 619, wher,e murder in the first degree was charged and the defendant convicted of manslaughter, the court said: “Manslaughter is not a degree of murder, but it is a grade or degree of unlawful homicide.” In State v. Johnson, 215 Iowa 483, 245 N. W. 728, the defendant was charged with murder in the second degree and was convicted of manslaughter. The court therein said: “Manslaughter is not a degree of murder, but an included crime.” In People v. King, 30 Cal. App. (2d) 185, 85 P. (2d) 928, the court made this statement: “Moreover, manslaughter is a crime distinct from murder, but may, however, be included in it.” Similar statements will be found in State v. White, 41 Iowa 316, 20 Am. Rep. 602; State v. Brown, 152 Iowa 427, 132 N. W. 862; State v. Quan Sue, 191 Iowa 144, 179 N. W. 972; Boyett v. State, 69 Fla. 648, 68 So. 931. From our analysis of Rem. Rev. Stat., § 2116, in the light of its legislative history and its relation to the other sections of the statute referred to above, we arrive at the conclusion that, the respondent having pleaded guilty to a charge of murder in the second degree, the trial court was not required, nor permitted, by virtue of § 2116, to impanel a jury to hear testimony and determine the “degree” of murder. Finally, respondent contends that this court, in the case of In re Horner, 19 Wn. (2d) 51, 141 P. (2d) 151, has construed Rem. Rev. Stat., § 2116, to require the impaneling of a jury in a case such as this. In that case, the defendant Horner pleaded guilty to a charge of murder in the first degree, and the trial court, without impaneling a jury to determine the degree of murder and the punishment therefor, immediately adjudged the defendant guilty and sentenced him to life imprisonment. On appeal to this court several questions were raised and considered, and on the point here involved this court made the following statement, on which the respondent so strongly relies: “In the instant case, it is manifest, from the plain terms of the statute, that the petitioner did not — and, indeed, could not — waive a jury by his plea of guilty; and it is equally apparent that the trial judge hád no authority to enter judgment and sentence unless and until a jury determined the degree of the crime, for the applicable statute reads as follows: [quoting Rem. Rev. Stat., § 2116].” •It will be noted that in that case the defendant pleaded guilty to a charge of murder in the first degree. Consequently, the trial court could not sentence the defendant until and unless a jury should determine the degree of murder and the punishment therefor. In the light of the facts in that case, the holding of this court as set forth in the language above quoted, was strictly correct. But, as already shown, we do not have that situation here, for the respondent pleaded guilty to a charge of murder in the second degree, and there was nothing for a jury to determine. The Horner case, supra, is neither applicable to, nor controlling of, the case now before us. The order of the trial court is reversed, and the petition for writ of habeas corpus will be dismissed. Beals, C. J., Simpson, Jeffers, and Grady, JJ., concur.

Dolliver, J. Defendant, Shelley Sue Smith, challenges her conviction for conspiracy to commit first degree murder on the basis that the "to convict” instruction omitted an element of the crime and was thus constitutionally defective. Defendant was convicted of attempted murder of her flaneé, James Jeffers, and conspiracy to commit murder of her ex-husband, David Smith. Defendant drove Jeffers to a remote area on Thanksgiving evening, 1992, where Jeffers was shot and seriously wounded by a third person. During the course of the investigation of the Jeffers shooting, Jeffers told police that Defendant had written him a letter pleading with him to help her get rid of her former husband, David Smith. Further investigation revealed that Defendant and David Smith had an ongoing custody dispute involving their daughter, Kendra. Defendant’s mother, Marjorie Franklin, cared for Kendra most of the time. Franklin frequently expressed intense hatred for David Smith. Jeffers told police that both Franklin and Defendant asked him to kill David Smith or find someone who would. He offered two acquaintances $500 to kill David Smith. Jeffers understood from Franklin that she would provide the money. This appeal involves only the conviction for conspiracy to murder David Smith. On the conspiracy count, the information alleged that, with intent that conduct constituting first degree murder be performed, Defendant feloni-ously agreed with Jeffers, Franklin, and others unknown to engage in or cause the performance of such conduct and that one or more of them took a substantial step in the performance of such agreement. The court’s Instruction 13 says that, to convict Defend ant of criminal conspiracy, the following elements must be proved beyond a reasonable doubt: Between 1990 and November 1992, Defendant "agreed with Marjorie Franklin and James Jeffers to engage in . . . the performance of conduct constituting the crime of Conspiracy to Commit Murder in the First Degree,” the Defendant "made the agreement with the intent that such conduct be performed,” and that "any one of the persons involved in the agreement took a substantial step in pursuance of the agreement ..." Clerk’s Papers at 32 (emphasis added). The court correctly defined "first degree murder” in a separate instruction. Clerk’s Papers at 31. The court also correctly defined "conspiracy” (Clerk’s Papers at 26), correctly defined "substantial step” (Clerk’s Papers at 30), and instructed the jury to disregard any remark, statement, or argument that is not supported by the evidence or the law as given by the court (Clerk’s Papers at 18). The prosecutor referred to the conspiracy "to convict” instruction in closing argument and said, "[t]he agreement has to be with one or more to cause the death of” another person. Report of Proceedings at 303. The prosecutor argued the State had proven the Defendant conspired with Franklin and Jeffers to kill David Smith and had taken several substantial steps toward that goal by soliciting various people to kill him. The jury found Defendant guilty on both counts. While Defendant’s appeal was pending, Jeffers recanted his testimony and pleaded guilty to perjury. Defendant filed a personal restraint petition raising Jeffers’ recantation as newly discovered evidence. The Court of Appeals agreed that an evidentiary hearing was needed on that issue, but otherwise rejected Defendant’s challenges to her convictions. State v. Smith, 80 Wn. App. 462, 909 P.2d 1335, review granted, 129 Wn.2d 1019 (1996). Although the court agreed with Defendant that the instruction did not properly list all the elements of the offense, the court held that the instructions as a whole were adequate to advise the jury of the conspiracy charge. Smith, 80 Wn. App. at 468-69. I Defendant contends that Instruction 13, the "to convict” instruction on the conspiracy charge, failed to list all of the elements of the crime and is thus constitutionally defective. Instruction 13 required the jury to find beyond a reasonable doubt that Defendant "agreed with Marjorie Franklin and James Jeifers to engage in . . . the performance of conduct constituting the crime of Conspiracy to Commit Murder in the First Degree!.]” Clerk’s Papers at 32. Instead of listing the elements of conspiracy to commit first degree murder, the instruction described the even more inchoate crime of conspiracy to commit conspiracy to commit murder. There is no dispute that the instruction is defective. The State concedes that the phrase, " 'crime of Conspiracy to Commit Murder in the First Degree’ should have read, 'crime of Murder in the First Degree’ since First Degree Murder was the subordinate crime of the alleged conspiracy.” Supplemental Br. of Resp’t at 1-2. The Court of Appeals acknowledged that Instruction 13 was defective, but held that the instructions as a whole were sufficiently clear. Smith, 80 Wn. App. at 468. The court reasoned that, when read together, Instructions 7, 12, and 13 made it clear that murder was the subject crime of the conspiracy charge. Smith, 80 Wn. App. at 468. Instruction 7 defines criminal conspiracy as requiring the "intent that conduct constituting a crime be performed” and an agreement "to engage in or cause the performance of such conduct!.]” Clerk’s Papers at 26. Instruction 12 defines murder in the first degree. Clerk’s Papers at 31. The Court of Appeals erred in looking to the other instructions to supply the element missing from the "to convict” instruction. We have held on numerous occasions that jurors are not required to supply an omitted element by referring to other jury instructions. In State v. Emmanuel, 42 Wn.2d 799, 819, 259 P.2d 845 (1953), this court held that a "to convict” instruction must contain all of the elements of the crime because it serves as a "yardstick” by which the jury measures the evidence to determine guilt or innocence. The court emphasized that an instruction purporting to list all of the elements of a crime must in fact do so. Emmanuel, 42 Wn.2d at 819-20. Like the "to convict” instruction in Emmanuel, the instruction here is constitutionally defective because it purports to be a complete statement of the law yet states the wrong crime as the underlying crime which the conspirators agreed to carry out. The jury simply found, according to its instructions, that the Defendant and others agreed to conspire to commit murder, not that they agreed to commit murder. Although the difference between the two instructions may seem picayune, the jury has the right under Emmanuel to regard the "to convict” instruction as a complete statement of the law; when that instruction fails to state the law completely and correctly, a conviction based upon it cannot stand. It cannot be said that a defendant has had a fair trial if the jury must guess at the meaning of an essential element of a crime or if the jury might assume that an essential element need not be proved. State v. Johnson, 100 Wn.2d 607, 623, 674 P.2d 145 (1983) (holding that the specific crime intended is not an "element” of burglary), overruled on other grounds in State v. Bergeron, 105 Wn.2d 1, 711 P.2d 1000 (1985). In this case, the jury was allowed to assume an essential element — that the conspirators agreed to commit the crime of murder — need not be proved. II The State asserts that the error was harmless. An instructional error is presumed to have been prejudicial unless it affirmatively appears that it was harmless. State v. Wanrow, 88 Wn.2d 221, 237, 559 P.2d 548 (1977). "A harmless error is an error which is trivial, or formal, or merely academic, and was not prejudicial to the substantial rights of the party assigning it, and in no way affected the outcome of the case.” Wanrow, 88 Wn.2d at 237 (quoting State v. Golladay, 78 Wn.2d 121, 139, 470 P.2d 191 (1970)). Once an error is presumed to be prejudicial, it is the State’s burden to show that it was harmless. State v. Burri, 87 Wn.2d 175, 182, 550 P.2d 507 (1976). State v. Aumick, 126 Wn.2d 422, 894 P.2d 1325 (1995), is directly on point. In Aumick, this court held that the trial court’s failure to instruct the jury that intent was an element of attempted rape was not harmless error. Aumick, 126 Wn.2d at 430. Responding to the State’s argument that the error was harmless because other jury instructions correctly stated the law, the court stated, "[a] jury is not required to search other instructions to see if another element should have been included in the instruction defining the crime.” Aumick, 126 Wn.2d at 431 (citing State v. Stewart, 35 Wn. App. 552, 667 P.2d 1139 (1983)). Similarly, in State v. Stephens, 93 Wn.2d 186, 191, 607 P.2d 304 (1980), this court held that an erroneous "to convict” instruction was not a harmless error because, although other instructions correctly stated the law, the court was unable to conclude that the erroneous instruction " 'in no way affected the outcome of the case.’ ” (Quoting Wanrow, 88 Wn.2d at 237.) This was especially true because, the "[instruction . . . purported to set forth the elements of the crime, structuring the deliberations for the jury.” Stephens, 93 Wn.2d at 191. The State argues that the error is harmless because the defense was still able to argue its theory of the case to the jury, and counsel for both the defense and the prosecution discussed the elements of conspiracy during closing argument. In Aumick, the State similarly argued that the error was harmless because defense counsel was still able to argue its theory to the jury. Aumick, 126 Wn.2d at 431. The court held that this contention was without merit, stating that the jury should not have to obtain its instruction on the law from arguments of counsel. Aumick, 126 Wn.2d at 431. The court pointed out that the trial court had specifically instructed the jury that it should " '[disregard any remark, statement or argument that is not supported by the evidence or the law as stated by the court.’ ” Aumick, 126 Wn.2d at 431 (quoting a jury instruction) (alteration in original). See also State v. MacMaster, 113 Wn.2d 226, 232, 778 P.2d 1037 (1989); State v. Acosta, 101 Wn.2d 612, 621-22, 683 P.2d 1069 (1984). An identical instruction was given here. Clerk’s Papers at 18. The instruction here, like the erroneous instructions in Aumick and Stephens, structured the jury’s deliberations by purporting to set forth the elements of the crime. We can only assume that the jury relied upon the "to convict” instruction as a correct statement of the law. The jury was not required to search the other instructions to make sense of the erroneous "to convict” instruction, and we cannot assume that the jury attempted to compensate for the court’s error by doing so. We, therefore, cannot say that the error was harmless. Our holding today is in accord with prior cases out of this court holding that failure to instruct on an element of an offense is automatic reversible error. Recently, in State v. Eastmond, 129 Wn.2d 497, 503, 919 P.2d 577 (1996), we held that the omission of an element of the crime produces a "fatal error” by relieving the State of its burden of proving every essential element beyond a reasonable doubt. See also State v. Byrd, 125 Wn.2d 707, 713-14, 887 P.2d 396 (1995) (failure to instruct the jury on every element of the crime was reversible error because such an error relieves the State of its burden of proving every element beyond a reasonable doubt). Several recent federal cases have similarly held that harmless error analysis does not apply to certain instructional errors that relieve the State of proving guilt beyond a reasonable doubt on every element of the crime. In Sullivan v. Louisiana, 508 U.S. 275, 278-82, 113 S. Ct. 2078, 124 L. Ed. 2d 182 (1993), the Supreme Court held that a faulty reasonable doubt instruction was not amenable to harmless error analysis. The Court explained that harmless error review looks not to whether a guilty verdict would have been rendered in a trial without the error, "but whether the guilty verdict actually rendered in this trial was surely unattributable to the error.” Sullivan, 508 U.S. at 279 (emphasis added). The Court concluded, "There being no jury verdict of guilty-beyond-a-reasonable-doubt, the question whether the same verdict of guilty-beyond-a-reasonable-doubt would have been rendered absent the constitutional error is utterly meaningless.” Sullivan, 508 U.S. at 280 (emphasis added). A number of lower federal courts, applying this reasoning, have since held that the harmless error analysis does not apply when the trial court fails to instruct the jury on an element of the crime. See United States v. David, 83 F.3d 638, 647 (4th Cir. 1996); United States v. DiRico, 78 F.3d 732, 736-38 (1st Cir. 1996); United States v. Pettigrew, 77 F.3d 1500, 1511 (5th Cir. 1996). We reverse the Court of Appeals and remand for a new trial on the conspiracy charge. Durham, C.J., and Smith, Guy, Johnson, Madsen, Alexander, Talmadge, and Sanders, JJ., concur.

Webster, J. This action was brought by appellants to enjoin respondents from enforcing as against them the provisions of chapter 57, Laws of 1915, p. 1227 (Bern. Code, § 5562-37 et seq.), entitled, “An act relating to and regulating common carriers of passengers upon public streets, roads and highways, providing for the issuance of permits; prescribing penalties for violations, and providing when this act shall take effect.” The trial court found the following facts: That appellants are engaged in what is known as the automobile rent business; that each of them is the owner of an automobile which he drives for hire, either at a charge of so much per trip or so much per hour; that each, of them has a fixed stand where, when not engaged with customers or not otherwise using the car, they are available to prospective customers during many hours of the day and night; that none of them' has a fixed route or routes over which they operate their motor cars; that they do not, when engaged by one person for a trip or trips, ever carry any passenger or passengers other than those directed by the original hirer, whether their automobile capacity is exhausted or not; that none of them has or maintains any fixed schedule of rates for the transportation of passengers, either for a single trip or by the hour, and that each of them “do now and have always reserved the right to transport passengers or refuse to transport them whether they are occupied or not occupied with other engagements.” Upon these facts the trial court concluded that the business conducted by the several appellants falls within the provisions of the act and is subject to its regulations. A decree was entered accordingly, from which this appeal is prosecuted. Appellants insist that, under the facts found by the court, they are not common carriers of passengers, hence not within the purview of the act. For the purpose of this opinion, it will be assumed that the statute applies only to common carriers of passengers in motor propelled vehicles. State v. Ferry Line Auto Bus Company, 93 Wash. 614, 161 Pac. 467. The sole inquiry, therefore, is whether, under the facts set forth, appellants are such carriers. The precise question thus presented is of first impression in this court, and its importance seems to justify an extended discussion of the authorities. Carriers may be defined as persons or corporations who undertake to transport or convey goods, property or persons, from one place to another, gratuitously or for hire; and are classified as private or special carriers, and common or public carriers; the class to which a particular carrier is to be assigned, depending upon the nature of his business, the character in which he holds himself out to the public, the terms of his contract, and his relations generally to the parties with whom he deals and the public. 1 Moore, Carriers (2d ed.), §§ 1 and 2. The books abound with definitions of both common and private carriers from which the distinguishing features may be gathered. Judge Thompson submits the following: “A common carrier of passengers is one who undertakes for hire, to carry all persons indifferently who may apply for passage. To constitute one a common carrier, it is necessary that he should hold himself out as such. This may be done not only by advertising, but by actually engaging in the business and pursuing the occupation as an employment.” Thompson, Carriers of Passengers, p. 26, note 1. Redfield in his treatise says: “It is generally considered that, where the carrier undertakes to carry only for the particular occasion, pro liac vice, as it is called, he cannot be held responsible as a common carrier. So, also, if the carrier be employed in carrying for one or a definite number of persons, by way of special undertaking, he is only a private carrier. To constitute one a common carrier he must make that a regular and constant business, or at all events, he must, for the time hold himself ready to carry for all persons, indifferently, who choose to employ him. ’ ’ Redfield, Carriers and Bailees, § 19. In Dobie on Bailments and Carriers, at §§ 106 and 107 the author says: “The private carrier is one who, without engaging in such business as a public employment, undertakes by special contract to transport goods in particular instances from one place to another. ‘ ‘ The common carrier of goods is one who holds himself ont, in the exercise of a public calling, to carry goods, for hire, for whomsoever may employ him.” This author at § 164 states: “The same considerations that distinguish the common from the private carrier of goods apply to set apart the common and private carrier of passengers. ’ ’ Hutchinson announces the rule in this language: “Private carriers for hire are such as make no public profession that they will carry for all who apply, but who occasionally or upon the particular occasion undertake for compensation to carry the goods of others upon such terms as may be agreed upon. They are not common carriers because they do not make the carriage of goods for others a business, and do not hold themselves out to the public as ready and willing to carry indifferently for all persons any particular class of goods or goods of any kind whatever.” 1 Hutchinson, Carriers (3d ed.), § 35. Judge Story observes: “To bring a person under the description of a common carrier, he must exercise it as a public employment; he must undertake to carry goods for persons generally, and he must hold himself out as ready to engage in the transportation of goods for hire, as a business, not as a casual occupation pro hac vice. A common carrier has therefore been defined to be one who undertakes for hire or reward to transport the goods of such as choose to employ him, from place to place.” Story, Bailments, § 495. Chancellor Kent says: “Common carriers undertake generally, and not as a casual occupation, and for all people indifferently, to convey goods, and deliver them at a place appointed, for hire as a business, and with or without a special agreement as to price.” 2 Kent, Commentaries, 598. , In vol. 1, MicMe on Carriers, at page 3, it is said: “A common carrier of passengers is one who undertakes, for hire, to carry all persons indifferently who may apply for passage.” In vol. 1, Moore on Carriers, at § 4, the author says: “A private carrier is one who agrees, by special agreement or contract, to transport persons or property from one place to another, either gratuitously or for hire; one who undertakes for the transportation in a particular instance only, not making it a vocation, nor holding himself out to the public ready to act for all who desire his services. Common carriers, however, hold themselves out to carry for all persons indiscriminately. ’ ’ In vol. 10, Corpus Juris, at § 1, we find: “A carrier is one that undertakes the transportation of persons or movable property, and the authorities, both elementary and judicial, recognize two kinds or classes of carriers, namely, private carriers and common carriers. A private carrier is one who, without being engaged in such business as a public employment, undertakes to deliver goods in a particular case for hire or reward. While a common carrier has been defined as one that holds itself out to the public to carry persons or freight for hire.” Passing from the definitions given by the text writers to a few of the pertinent cases, we find the following in which the distinguishing features are applied. In McHenry v. Philadelphia, W. & B. R. Co., 4 Har. (Del.) 448, it was held that the owners of stage wagons, stage coaches, and railroad cars, who carry goods as well as passengers for hire; wagoners, teamsters and cart men who undertake as a common employment to carry goods for hire, from one town to another ; the masters and owners of ships, vessels, steamboats, barge owners, canal boatmen and ferrymen, em ployed in the like business, are all common carriers: the test applied being, “A common carrier is one who undertakes and exercises, as a public employment, the transportation or carriage of goods for persons generally, from place to place, whether by land or by water, and to deliver them at the place appointed, for hire or reward, and with or without a special agreement as to price.” In Fish v. Chapman, 2 Ga. 349, 46 Am. Dec. 393, it was held that: “To render one a common carrier his undertaking must he general and for all people indifferently. The undertaking may he evidenced by the carrier’s own notice or practically by a series of acts, by his known habitual continuance in this line of business. He must assume to he the servant of the public, he must undertake for all people. A special undertaking for one man does not render a person a common carrier. One who follows carrying for a livelihood or who gives out to the world in any intelligible way that he will take goods or other things for transportation from place to place, whether for a year, a season, or less time, is a common carrier and subject to all the liabilities of such.” In Varble v. Bigley, 14 Bush (Ky.) 698, 29 Am. Rep. 435, it is said: “When a person has assumed the character of a common carrier, either by expressly offering his services to all who will hire him, or by so conducting his business as to justify the belief on the part of the public that he means to become the servant of the public, and to carry for all, he may he safely presumed to have intended to assume the liabilities of a common carrier, for he was hound to know that the law would so charge him, and knowing, must have intended it. ’ ’ In Parmelee v. Lowitz, 74 Ill. 116, 24 Am. Rep. 276, the proprietor of a line of omnibuses and baggage wagons, engaged in carrying for hire, passengers and baggage for all persons choosing to hire, from, to and between depots, hotels and different parts of the city of Chicago, was held to be a common carrier. The doctrine of this case is expressly reaffirmed in the recent case of Hinchliff v. Wenig Teaming Co., 274 Ill. 417, 113 N. E. 707. In McGregor v. Gill, 114 Tenn. 521, 86 S. W. 318, 108 Am. St. 919, where it was held that a livery stable keeper who had hired a team and conveyance to a customer for a special occasion, was not a common carrier, the distinction between the two classes is aptly stated in this language: “The present case bears no likeness to that of Lawrence v. Hudson, 12 Heisk [Tenn.] 671, relied on as authority by the plaintiff in error. In that case the defendant was the owner of a line of omnibuses running from Nashville to Edgefield, holding himself out to the public as ready and willing to carry for hire all persons who offered themselves as passengers. This owner was, upon all the authorities a common carrier, and was properly held to the full limit imposed upon one so engaged. ’ ’ In that case the court approved this definition of a common carrier: “A common carrier of passengers is one who undertakes for hire to carry all persons indifferently who may apply for passage. To constitute one a common carrier it is necessary that he should hold himself out to the community as such.” In Robertson & Co. v. Kennedy, 2 Dana (Ky.) 430, 26 Am. Dec. 466, the court of appeals of Kentucky had before it this state of facts: The defendant had been in the habit of hauling for hire, in the town of Brandenburgh, for every one who applied to him, with an ox team, driven by his slave; he undertook to haul for plaintiffs a hogshead of sugar, and in the course of transporting it, the slide slipped into the river, whereby the sugar was spoiled. In an action to recover against the defendant upon the theory that he was a common carrier, the court held: .“Every one who pursues the business of transporting goods for hire, for the public generally, is a common carrier. According to the most approved definition, a common carrier is one who undertakes, for hire or reward, to transport the goods of all such as choose to employ him, from place to place. Draymen, cart-men and porters, who undertake to carry goods for hire, as a common employment, from one part of a town to another, come within the definition. So also does the driver of a slide with an ox team. The mode of transporting is immaterial.” The case of Lloyd v. Haugh, 223 Pa. St. 148, 72 Atl. 516, 21 L. R. A. (N. S.) 188, is peculiarly applicable here, for the reason that its facts are strikingly similar to those found by the trial court. From the opinion it appears: “The defendant, an incorporated company, though chartered to do a general warehouse and storage business, does not confine itself strictly to the particular business for which it was chartered, but engages as well in the business of moving household goods in the city of Pittsburg and vicinity. The president of the company, speaking to this point, says in his testimony that general hauling of household goods is one of the particular lines of business in which the company engages, and that it solicits of this kind by public advertisements in various ways, by signs upon its wagons, upon fences, when that is allowed, by cards intended for general distribution, and by the bills and tags used in the course of the business. These advertisements speak for themselves, and unquestionably establish the fact, independent of everything else in the case, that the defendant does hold itself out to the public as engaged in the moving of household goods, thereby inviting employment along this line. None of these advertisements contain a suggestion of limited liability, or that the company will render such service only as it may select its patrons. Notwithstanding this public committal of the company to a general and indiscriminating service, it is argued that inasmuch as the company claims the right to select those whom it will serve, and because its custom has been and is to discriminate, accepting some and rejecting others, as it may choose, this circumstance makes it a private as distinguished from a common carrier, and exempts it from the obligations and liability which the law imposes on the latter relation. . . . Conceding, however, that such a duty (to carry indiscriminately at established prices) rests upon a common carrier, to claim that one is not a common carrier because he has persistently disregarded this duty and has arbitrarily chosen whom he would serve, notwithstanding he has invited the public generally to apply, is to make a public duty determinable by the pleasure of the individual and not by principle or law. We express a doctrine universally sanctioned when we say, that anyone who holds himself out to the public as ready to undertake for hire or reward the transportation of goods from place to place, and so invites custom of the public, is in the estimation of the law a common carrier. . . . We are dealing with a case where the carrier made the transportation of household goods part of its regular business, advertised that business in a way to solicit custom from the general public. An unavoidable implication arises that it holds itself in readiness to engage with anyone who might apply.” In Vandalia R. Co. v. Stevens, 114 N. E. 1001, the appellate court of Indiana observed: “On the other hand, we cannot agree with the appellant’s contention that the common carrier may, by the words of its contract, convert itself into a private carrier, where the transportation undertaken and the duties and responsibilities incident thereto are such as are ordinarily incident to a common carrier.” In Bank of Kentucky v. Adams Express Co., 93 U. S. 174, Mr. Justice Strong said: “We have already remarked, the defendants were common carriers. They were not the less such because they had stipulated for a more restricted liability than would have been theirs had their receipt contained only a contract to earry and deliver. What they were is to be determined by the nature of their business, not by the contract they made respecting the liabilities which should attend it. Having taken up the occupation, its fixed legal character could not be thrown off by any declaration or stipulation that they should not be considered such carriers.” In vol. 1, Michie on Carriers, at page 3, the author says: “Persons carrying on a transportation business under circumstances which, in law, constitute them common carriers, cannot divest themselves of that character, nor secure an exemption from its liabilities, by declaring in their bills of lading, etc., that they are not to be deemed common carriers. What they are is to be determined by the nature of their business.” Authorities to the same effect may be cited indefinitely; but from the foregoing it is manifest that a common carrier is one whose occupation is the transportation of persons or things from place to place for hire or reward, and who holds himself out to the world as ready and willing to serve the public indifferently in the particular line or department in which he is engaged; the true test being whether the given undertaking is a part of the business engaged in by the carrier which he has held out to the general public as his occupation, rather than the quantity or extent of the business actually transacted, or the number and character of the conveyances used in the employment. On the other hand, if the undertaking be a single transaction, not a part of the general business or occupation engaged in, as advertised and held out to the general public, then the individual or company furnishing such service is a private and not a common carrier. In either case the question must be determined by the character of the business actually carried on by the carrier and not by any secret intention or mental reservation it may entertain or assert when charged with the duties and obligations which the law imposes. An analysis of the findings of the lower court discloses that appellants’ calling is characterized by the following features: (a) they are engaged in what is known as the automobile rent business; (b) each of them owns and operates a motor propelled vehicle for hire, either at a charge of so much a trip or so much per hour; (c) each has a fixed stand or place where his car is available to prospective customers during many hours of the day and night; and (d) they transport passengers from place to place. Here we have carriers engaged in transporting persons for hire as a business or occupation, and impliedly and practically holding themselves out to the public as ready and willing to serve indiscriminately all who may desire the use of their facilities. The fact that they have no fixed schedule of charges, do not operate over definite routes, do not upon all occasions load the car to its full capacity, and reserve the right to refuse to transport passengers whether their automobile is engaged or not, is wholly immaterial; their character is determined by their public profession, not by undisclosed reservations or secret intentions. The advent of the automobile as a mode of conveyance has in nowise marked a departure from or modification of the principles of the law of carriers as theretofore defined and applied by the courts. The automobile is but a modern method of transportation to which the settled rules have been extended. Babbitt, in his work, The Law Applied to Motor Vehicles, at § 620, observes: “The motor vehicle is daily coming into increasing use in a commercial capacity. It is already found in nearly every line of business. Associations and corporations have been organized with tbe motor car as a meáns- of transporting both passengers and property as common carriers. . . . The distinction between such carriers and private carriers is that the former holds himself out to all persons who choose to employ him, as ready to carry for hire, while the latter agrees in some special case with some private individual to carry for hire. The common carrier’s employment is public, and he is bound to carry the goods and persons' of all who demand carriage and who comply with his reasonable terms. . . . The essence of the distinction between the two classes of carriers is that in order to constitute one a common carrier, it is necessary that he hold himself out to the public as such. . . . And one may hold himself out as a common carrier not only by advertising, but by actually engaging in the business and pursuing the occupation as an employment. ’ ’ Huddy on Automobiles (4th ed.), § 39, says: “An automobile may be used as a common carrier, a private carrier, or a personal private conveyance. Public motor vehicles, such as sight-seeing cars, taxicabs, and others which are employed in carrying all persons applying for transportation, come within the definition that a common carrier of passengers is one who undertakes for hire to carry all persons who may apply for passage. But to constitute one a common carrier it is necessary that he should hold himself out as one.” A person or company engaged in the operation of a jitney bus is a common carrier. Dresser v. Wichita, 96 Kan. 820, 153 Pac. 1194, Ann. Cas. 1917C 1045, L. R, A. 1916B 1143; Memphis v. State ex rel. Ryals, 133 Tenn. 83, 179 S. W. 631, L. R. A. 1916D 246; Berry, Automobiles (2d ed.), §874; Huddy, Automobiles (4th ed.), § 372. A taxicab company, following the business of transporting persons for hire and holding itself out as ready to carry one and all indiscriminately, is a common carrier and subject to all the responsibilities of such a carrier. Public Service Commission v. Hurtgan, 91 Misc. Rep. 432, 154 N. Y. Supp. 897; Donnelly v. Philadelphia & Reading R. Co., 53 Pa. Sup. Ct. 78; Van Hoeffen v. Columbia Taxicab Co., 179 Mo. App. 591, 162 S. W. 694; Carlton v. Boudar, 118 Va. 521, 88 S. E. 174; State v. Seattle Taxicab & Transfer Co., 90 Wash. 416, 156 Pac. 837; Berry, Automobiles (2d ed.), § 887; Huddy, Automobiles (4th ed.), §303; Babbitt, Motor Vehicles, § 621. There is no essential difference in the character of service furnished by the taxicab and that supplied by appellants. They afford similar accommodations, are operated in practically the same manner, and are necessarily governed by the same principles. We conclude that appellants come within the act in question and are subject to its provisions. The judgment is affirmed. Ellis, C. J., Mount, Holcomb, and Chadwick, JJ., concur.

Mitchell, J. Respondent, having purchased a ticket to the grand stand, attended a game of baseball conducted by appellant in Seattle. During the game he was hit on the knee by a foul ball and injured. In the complaint he charges appellant with negligence in failing to maintain a screen in front of the seat he occupied. Appellant denied negligence on its part and affirmatively answered that, on the day of the accident, it had provided a screened section ample and sufficient for all patrons who cared to sit behind it, thus performing its full duty to the public; that respondent was acquainted with the game and its attendant dangers; and that, -in taking a seat outside the screened section, he was guilty of contributory negligence and assumed the risk of the accident and injury. The affirmative matter of the answer was denied by the respondent. There was a trial by a jury, which returned a verdict for $1,000. The trial court denied motions for a directed verdict, for a judgment notwithstanding the verdict, and for a new trial. Judgment was entered on the verdict, from which an appeal was taken. Assignments of error are based on the denials of the motions, and alleged error in refusing to admit certain evidence offered by appellant. The ball park was new, not yet fully completed. The seating arrangements were] in the usual form, the center front of the grand stand being about fifty-eight feet from the home plate. The plans provided for one hundred and twenty feet of netting in front of the seats in the grand stand—sixty feet on each side of the center. Respondent had attended a number of games at the old park in Seattle and four or five at this new park. On the day he was injured, he arrived during the second inning of the game and hurriedly took the first convenient seat he reached in the grand stand, where he was injured. There is no dispute that the grand stand was screened for thirty feet on each side of its center. All the evidence of the respondent tended to show he was sitting on a front seat well within sixty feet, and more than thirty feet to the right, of the center of the grand stand, and that there was no screen in front of him. On the other hand, the evidence of appellant, including the plans of its buildings introduced in evidence, tended to show the grand stand was screened sixty feet on each side of its center, but is silent as to just where respondent was sitting. All the seats protected by sixty feet of screen in the center of the grand stand were not taken when respondent arrived. No usher was in attendance. In keeping with what may be considered common knowledge, the evidence showed there was danger from foul balls at all places back of the foul lines, the danger being greatest as to force and frequency of such balls, at points directly behind the batter, the danger thence radiating and decreasing. The jury was properly instructed, and we must view the situation through the judgment of the jury as expressed by the verdict. By such rule it must be consideréd as proven that there were only thirty feet of screen on each side of the center of the front of the grand stand, and that respondent when injured was sitting in the front row at a point between thirty and sixty feet from the center of the grand stand and without the protection of a screen. At the same time, by undeniable implication, appellant admitted that reasonable care and prudence required it to have the front of the seats screened to a point beyond the respondent’s seat, by the introduction of evidence to establish that fact. The jury was justified in concluding the situation defined negligence, which, as Judge Cooley in his work on Torts says, is “the failure to observe, for the protection of the interest of another person, that degree of care, precaution and vigilance which the circumstances justly demand, whereby such other person suffers injury.” As to contributory negligence on the part of plaintiff, or that he was at fault in not taking a seat in the portion that was screened, this involves the determination as to whether or not he acted as a reasonably prudent person would under similar circumstances. He came in, as he had a right to do, while the game was in progress and took the first vacant seat he noticed. By inference, he was invited to that seat. He paid an extra amount for the privilege of the grand stand. There was the implied representation on the part of appellant that the seat he took was reasonably safe. There was no caution or notice to him that it was other than safe. The ultimate fact of whether he could or should, at the time, have reasonably anticipated being struck and injured in that place by a foul ball, like the alleged negligence of appellant, was properly submitted to the jury. After appellant’s witnesses had testified that the building plans called for one hundred and twenty feet of screen and that that much had been put up—the latter being disproved to the evident satisfaction of the jury-—appellant called a witness, an acknowledged authority and writer on the game, who, after testifying to his constant attendance at the games in Seattle for years and the frequency and uncertainty of the force and direction of foul halls, was asked: “Did you ever see a time there was not sufficient screening at that park for the protection of the spectators?” The question was objected to on the grounds that it called for a conclusion to be drawn only by the jury. The court properly sustained the objection and advised appellant: “Let him state how much screening there was; hut whether it is sufficient, or not, is for the jury.” Finding no error, the judgment is affirmed. Main, C. J., Mackintosh, Tolman, and Chadwick, JJ., concur.

Dimmick, J. The Superior Court issued a preliminary injunction against the Department of Revenue preventing the Department from taking any further action against Tyler Pipe with reference to the collection of business and occupation taxes pending the outcome of a trial on the merits. We reverse the trial court and dissolve the injunction. The Department audited Tyler Pipe for the period January 1, 1976, through September 30, 1980. The audit resulted in an assessment of business and occupation taxes in the amount of $123,159, including interest. Tyler Pipe petitioned the Department for a correction of this assessment. The Department denied the petition and sustained the imposition of the tax establishing May 20, 1981, as the due date for payment of the assessment or a 10 percent penalty would be imposed. Tyler Pipe could have prepaid the assessment and litigated its claims in a refund action; however, the interest which a taxpayer may recover if successful in a refund suit is only 3 percent. Rather than prepaying the tax, Tyler Pipe filed its Complaint for Declaration of Invalidity of Tax Assessment, Injunction and Other Relief along with a Motion for Temporary Restraining Order. The motion was supported by two affidavits signed by an attorney for Tyler Pipe. A hearing was held on the motion and the court issued a temporary restraining order. When Tyler Pipe's request for a preliminary injunction was heard, the court considered an additional affidavit from the Department along with briefs of the parties. The trial court granted Tyler Pipe's motion and entered its findings of fact, conclusions of law and order granting preliminary injunction. The conclusions of law relevant to this appeal are: 3.2 Plaintiff is entitled to an injunction under RCW 82.32.150 and a substantial constitutional question not definitely resolved by prior authorities is clearly presented in this case. 3.3 Plaintiff will suffer immediate and irreparable injury and harm without an injunction due to the substantial penalty which would be imposed without prepayment and the minimal (3%) interest allowed on tax refunds in the event plaintiff is successful on the merits compared to the amount of interest that would have to be paid by plaintiff to secure the amount of prepayment. There are three major issues before this court. First, does RCW 82.32.150 require the court to grant injunctive relief without reference to equitable criteria? Second, if not, what are the proper criteria in determining whether to grant or deny a preliminary injunction? Third, does Tyler Pipe meet such criteria? We conclude that a court must refer to equitable criteria under RCW 82.32.150; and after clarifying the proper criteria, we determine that Tyler Pipe did not meet the requirement. I The Department contends that conclusion of law No. 3.2 indicates that the trial court erroneously interpreted RCW 82.32.150 to require an injunction whenever a substantial constitutional question is presented. Tyler Pipe argues that such interpretation is proper. RCW 82.32.150 provides: All taxes, penalties, and interest shall be paid in full before any action may be instituted in any court to contest all or any part of such taxes, penalties, or interest. No restraining order or injunction shall be granted or issued by any court or judge to restrain or enjoin the collection of any tax or penalty or any part thereof, except upon the ground that the assessment thereof was in violation of the Constitution of the United States or that of the state. The statute has three basic parts. The third part, at issue herein, provides an exception to the declaration that injunctions shall not be granted. It is a well established principle of statutory construction that provisos and exceptions remove something from the enacting clause that would otherwise be contained therein. This proposition was well stated by this court in McKenzie v. Mukilteo Water Dist., 4 Wn.2d 103, 114, 102 P.2d 251 (1940) as follows: "It has not been an unfrequent mode of legislation to frame an act with general language in the enacting clause, and to restrict its operation by a proviso. . . . Provisos and exceptions are similar; intended to restrain the enacting clause; to except something which would otherwise be within it, or in some manner to modify it. . . . The exception of a particular thing from the operation of the general words of a statute shows that in the opinion of the law-maker the thing excepted would be within the general words had not the exception been made." Pursuant to this principle, the exception to the anti-injunction portion of RCW 82.32.150 cannot be read as independently requiring injunctions. Rather, it merely removes constitutional cases from the ban on injunctions allowing a court to exercise its equitable powers in those cases. We have held the legislature can never totally deprive the courts of their constitutional equity power. See O'Brien v. Johnson, 32 Wn.2d 404, 202 P.2d 248 (1949). However, courts will respect this ban on injunctions if the legislature provides an adequate legal remedy. In Roon v. King County, 24 Wn.2d 519,166 P.2d 165 (1946), the court dealt with a similar anti-injunction statute coupled with a statutory refund remedy in the property tax area. In discussing this combination the court stated: We do not construe the 1931 act as an encroachment upon the constitutional power of the court in the exercise of its inherent equity functions, nor would we accede to such attempt if it were so intended. We accept it simply and solely as a legislative undertaking to provide an adequate legal remedy in cases wherein, if a legal remedy existed before, it was a doubtful or inadequate one. Provision for a speedy, adequate remedy having thus been specifically made, the courts, while retaining to the full all of the equitable powers inherent in them, have only lessened occasion for the exercise of such powers. 24 Wn.2d at 526. Tyler Pipe makes two arguments to support its contention that RCW 82.32.150 requires the issuance of an injunction in constitutional cases. First, that RCW 82.32-.150 must be read in conjunction with 28 U.S.C. § 1341. 28 U.S.C. § 1341 prohibits federal district courts from enjoining the collection of taxes under state law "where a plain, speedy and efficient remedy may be had in the courts of such State." Tyler contends that when the two statutes are read together, RCW 82.32.150 must be construed as recognizing that a refund suit is an inadequate legal remedy in constitutional cases and that an injunction is required. Tyler cites no authority for its contention that RCW 82.32.150 and 28 U.S.C. § 1341 must be read together in this manner. Nothing in 28 U.S.C. § 1341 indicates that it requires different remedies for constitutional and nonconstitutional cases. In addition, the exception for constitutional cases in RCW 82.32.150 was not a response to 28 U.S.C. § 1341. Indeed, the predecessor to RCW 82.32.150 was enacted in 1933. See Laws of 1933, ch. 191, § 13. 28 U.S.C. § 1341 was not enacted until 1937. See Act of Aug. 21, 1937, ch. 726, § 1, 50 Stat. 738. Even if Washington must offer injunctive relief to have a plain, speedy and efficient remedy under 28 U.S.C. § 1341, there is no requirement that an injunction be granted. The injunctive remedy must simply be available. The United States Supreme Court spoke to this matter in Tully v. Grifin, Inc., 429 U.S. 68, 50 L. Ed. 2d 227, 97 S. Ct. 219 (1976). In Tully the taxpayer sought an injunction under 28 U.S.C. § 1341. New York had a judicial remedy which required payment of the tax prior to resolution and the court noted that the taxpayer lacked the means to make payment. The court ruled that the remedies provided by the State were plain, speedy and efficient. One of the remedies discussed was the possibility that the taxpayer could obtain a preliminary injunction. While the court noted the availability of this remedy it specifically stated: Although acknowledging a New York court's power to issue a preliminary injunction in these circumstances, the Attorney General remains free, of course, to oppose the granting of such relief in any particular case. 429 U.S. at 76 n.7. Tyler argues that 28 U.S.C. § 1341 requires the issuance of an injunction. Tully establishes that it is the opportunity to obtain an injunction that is required. Under the exception to RCW 82.32.150 Tyler has the opportunity to obtain an injunction in a constitutional case if it meets the equitable criteria governing injunctive relief. Tyler Pipe relies upon Pacific Tel. & Tel. Co. v. State Tax Comm'n, 180 Wash. 673, 676, 42 P.2d 420 (1935), as support for its position. In Pacific Telephone, this court affirmed an injunction restraining collection of taxes, and stated that the predecessor statute to RCW 82.32.150 "appears to recognize the right to injunctive relief" when a constitutional objection is made. Reliance on this statement is misplaced, however, because the court did not require an injunction but in fact looked to all the equities. RCW 82.32.150 provides a legal remedy and limits the court's equitable powers. The exception for constitutional cases simply means that the legislature has chosen not to limit the court's equitable powers with regard to those cases even though it has provided a legal remedy. Thus, while one is not barred from seeking an injunction in a constitutional case, one must meet the equitable criterion governing its issuance. II The rule in this state is that injunctive relief will not be granted where there is a plain, complete, speedy and adequate remedy at law. State v. Ralph Williams' N.W. Chrysler Plymouth, Inc., 87 Wn.2d 298, 312, 553 P.2d 423 (1976), appeal dismissed, 430 U.S. 952, 51 L. Ed. 2d 801, 97 S. Ct. 1594 (1977), citing Davies v. Seattle, 67 Wash. 532, 535,121 P. 987 (1912). The statutory scheme at issue provides the legal remedy of a refund suit; and if successful in that suit, a taxpayer may recover interest at 3 percent. RCW 82.32.060; 82.32-.150; 82.32.180. We need not decide whether the refund suit and the accompanying provision for interest is an adequate legal remedy barring equitable relief. As noted above, the legislature by excepting constitutional cases from the anti-injunction provision chose not to limit the court's equitable powers in those cases even though the legal remedy may, in fact, be adequate. The court in a constitutional case need only focus on the equitable criteria governing issuance of injunctions. The proper equitable criteria have been variously stated by the courts of this state. In addition to the judicial statements the legislature has set forth criteria in RCW 7.40.020. While this statute has remained virtually unchanged since 1881, it is seldom cited or relied upon. The most consistent and complete discussion of the criteria is in Port of Seattle v. International Longshoremen's & Warehousemen's Union, 52 Wn.2d 317, 324 P.2d 1099 (1958): It is an established rule in this jurisdiction that one who seeks relief by temporary or permanent injunction must show (1) that he has a clear legal or equitable right, (2) that he has a well-grounded fear of immediate invasion of that right, and (3) that the acts complained of are either resulting in or will result in actual and substantial injury to him. (Citations omitted.) Id. at 319. We see no reason to depart from this well established rule in the instant case. It is necessary, however, to clarify that since injunctions are addressed to the equitable powers of the court, the listed criteria must be examined in light of equity including balancing the relative interests of the parties and, if appropriate, the interests of the public. III It is unclear from the trial court's conclusions of law what criteria it applied. We have before us all the documents and arguments considered by the trial court. Thus, rather than remanding this matter to the trial court to apply the criteria enunciated herein, we shall prevent any further delay and expense by applying the criteria. A Clear Legal or Equitable Right The trial court concluded that a "substantial" constitutional question existed. Conclusion of law No. 3.2. Tyler Pipe argues that this conclusion, without more, meets the requirement that it demonstrate a clear right. The Department contends that this conclusion does not meet the requirement and we must analyze Tyler Pipe's likelihood of success on the merits. We agree with the Department. We discussed the necessity of establishing a clear right in Isthmian S.S. Co. v. National Marine Eng'rs Beneficial Ass'n, 41 Wn.2d 106, 117, 247 P.2d 549 (1952), and held that an injunction "will not issue in a doubtful case." Although we have discussed this criterion in other cases, we have not specifically stated what satisfies the requirement. We conclude it is appropriate to examine the likelihood of that party ultimately prevailing on the merits. The court in making this determination, obviously, does not adjudicate the ultimate rights in the lawsuit. The controversy in the instant case involves Tyler Pipe's challenge to the imposition of the tax based primarily on the interstate commerce clause and due process clause of the United States Constitution. Tyler Pipe contends that its nexus with the State of Washington is too attenuated to support the assessment of taxes. The record indicates that it is the firm position of the Department of Revenue that the in-state activities of the sales representatives of Tyler Pipe constitute sufficient nexus. The Department, as indicated in an affidavit and an attached letter, accepted stipulated facts as the basis for its opinion. The Department and the Washington State Board of Tax Appeals have sustained the imposition of this taxing jurisdiction in similar cases. In addition, we have reviewed the documents in the record indicating that the Thurston County Superior Court recently upheld the imposition of the business and occupation tax in a case involving very similar facts. PVO International, Inc. v. Department of Revenue, Thurston County cause No. 79-2-00732-1 (Oct. 2, 1980). After reviewing all the facts and documents which were before the trial court, we conclude that at this point in the proceedings Tyler Pipe has not made the requisite showing of a likelihood of success on the merits. Therefore, we hold that Tyler Pipe has not established a clear legal or equitable right. B Well Grounded Fear of Invasion Both parties agree this criterion is present. C Actual and Substantial Injury Tyler Pipe offered no testimony in support of its motion for injunctive relief. The complaint merely asserted that "irreparable injury will be suffered" and contained no facts supporting this assertion. Tyler Pipe presented two affidavits in support of its motion. The first reported the efforts made to notify the Department of a hearing on the temporary restraining order and the other set forth the fact that a penalty would be imposed if the taxes were not paid. There are no assertions or evidence that Tyler Pipe is unable to pay the tax, that payment would somehow irreparably damage Tyler Pipe's business or drive it into bankruptcy, or that it would be required to borrow money. It appears from the record that Tyler Pipe's injury is simply that it will have to pay the tax if the injunction is not granted and will only receive interest of 3 percent on its refund should it prevail. Payment of the tax, in and of itself, does not constitute the actual and substantial injury required for issuance of an injunction. This proposition was well established by the Supreme Court in Shelton v. Platt, 139 U.S. 591, 35 L. Ed. 273, 11 S. Ct. 646 (1891). In Shelton, the taxpayer sought to enjoin a tax it claimed was illegal and would cause irreparable injury. The court ruled that no injunction should issue, stating: So far as appeared, complete compensation for the resulting injury could have been had by recovery of damages in an action at law. There was no allegation of inability on the part of the express company to pay the amount of the taxes claimed, nor any averments showing that the seizure and sale of the particular property which might be levied on, would subject it to loss, damage and inconvenience which would be in their nature irremediable. 139 U.S. at 596. In addition, inconvenience in raising funds to pay taxes does not constitute actual and substantial injury. Tyler Pipe put no facts before the trial court demonstrating a difficulty in raising the amount of the tax; but even if such facts had been presented, they would not demonstrate actual and substantial injury. The United States Supreme Court clearly addressed this point, stating: Mere inconvenience to the taxpayer in raising the money with which to pay taxes is not uncommon, and is not a special circumstance which entitles one to resort to a suit for an injunction in order to test the validity or applicability of the tax. For aught that appears prompt payment of the tax and claim of refund would have led to an early determination of the liability here contested. California v. Latimer, 305 U.S. 255, 262, 83 L. Ed. 159, 59 S. Ct. 166 (1938). Tyler argues that the court is entitled to take judicial notice of the loss caused by the difference between the 3 percent interest rate paid by the State on refunds and the prime rate. We addressed the issue of judicial notice in State ex rel. Humiston v. Meyers, 61 Wn.2d 772, 380 P.2d 735 (1963): Judicial notice, of which courts may take cognizance, is composed of facts capable of immediate and accurate demonstration by resort to easily accessible sources of indisputable accuracy and verifiable certainty. The court may "... resort to encyclopedias, authoritative works upon the subject, reports of committees, scientific bodies, and any source of information that is generally considered accurate and reliable ..." 61 Wn.2d at 779. Pursuant to this formulation the court may take judicial notice of the prime rate of interest and Washington's 3 percent tax refund rate. However, the court may not take judicial notice of Tyler Pipe's financial condition and whether payment of the tax would result in actual and substantial harm. Since Tyler Pipe has put nothing into evidence to establish actual and substantial harm, it is reduced to arguing that any dollar loss constitutes actual and substantial harm regardless of its impact. An injunction is an extraordinary equitable remedy designed to prevent serious harm. Its purpose is not to protect a plaintiff from mere inconveniences or speculative and insubstantial injury. Accordingly, after reviewing all the facts and evidence before the trial court we conclude that Tyler Pipe has not established actual and substantial harm in its request for injunctive relief. The above criteria must be considered in light of equitable factors. Accordingly, we must weigh society's interest in efficient tax collection against Tyler Pipe's harm. As stated in Peters v. Sjoholm, 95 Wn.2d 871, 631 P.2d 937 (1981) (Brachtenbach, C.J., concurring): The government has a strong interest in the efficient collection of taxes which has long been recognized by the judiciary. (Citations omitted.) 95 Wn.2d at 885. Society's strong interest in the collection of taxes has led to a long-standing public policy which disfavors the issuance of injunctions. This policy was well stated by Justice Holmes in Dalton Adding Mach. Co. v. State Corp. Comm'n, 236 U.S. 699, 59 L. Ed. 797, 35 S. Ct. 480 (1915). In Dalton the plaintiff sought to enjoin the State of Virginia from enforcing its statute requiring foreign corporations to register with the State and pay a fee. In denying the injunctive relief the court stated: The general principle is that it is not for the courts to stop officers of this kind from performing their statutory duty for fear that they should perform it wrongly. . . . Especially is this true in the matter of collecting taxes and license fees. . . . The appellant has an adequate remedy at law in its right to raise the constitutional question if proceedings are taken against it, or, it seems, to recover the money if it pays under protest. No special circumstances are shown, that we can notice, to take this case out of the ordinary rule. (Citations omitted.) 236 U.S. at 701. The California Supreme Court recently stated in this regard that: The policy behind [a statute allowing a refund remedy with no possibility of an injunction] is to allow revenue collection to continue during litigation so that essential public services dependent on the funds are not unnecessarily interrupted. . . . "Any delay in the proceedings of the officers, upon whom the duty is devolved of collecting the taxes, may derange the operations of government, and thereby cause serious detriment to the public." (Citations omitted.) Pacific Gas & Elec. Co. v. State Bd. of Equalization, 27 Cal. 3d 277, 283, 611 P.2d 463, 165 Cal. Rptr. 122 (1980). These expressions of public policy apply directly to this case. Tyler Pipe has not alleged any special circumstances to justify the issuance of an injunction. The outcome of balancing society's strong interest in efficient tax collection against Tyler Pipe's harm clearly outweighs granting an injunction. In sum, RCW 82.32.150 does not require the court to grant injunctive relief in constitutional cases. A court must apply appropriate equitable criteria and balance the equities in granting an injunction. Therefore, we reverse the trial court and dissolve the injunction. Brachtenbach, C.J., and Rosellini, Stafford, Utter, Dolliver, Hicks, Williams, and Dore, JJ., concur. Reconsideration denied March 2, 1982. RCW 7.40.020 provides: "When it appears by the complaint that the plaintiff is entitled to the relief demanded and the relief, or any part thereof, consists in restraining the commission or continuance of some act, the commission or continuance of which during the litigation would produce great injury to the plaintiff; or when during the liti gation, it appears that the defendant is doing, or threatened, or is about to do, or is procuring, or is suffering some act to be done in violation of the plaintiff's rights respecting the subject of the action tending to render the judgment ineffectual; or where such relief, or any part thereof, consists in restraining proceedings upon any final order or judgment, an injunction may be granted to restrain such act or proceedings until the further order of the court, which may afterwards be dissolved or modified upon motion. And where it appears in the complaint at the commencement of the action, or during the pendency thereof, by affidavit, that the defendant threatens, or is about to remove or dispose of his property with intent to defraud his creditors, a temporary injunction may be granted to restrain the removal or disposition of his property." While not all Washington decisions cite all three criteria, they have been cited and relied on in a number of Washington decisions. See, e.g., Nielson v. King County, 72 Wn.2d 720, 435 P.2d 664 (1967); LeMaine v. Seals, 47 Wn.2d 259, 287 P.2d 305 (1955); Grande Ronde Lumber Co. v. Buchanan, 41 Wn.2d 206, 248 P.2d 394 (1952); Isthmian S.S. Co. v. National Marine Eng’rs Beneficial Ass'n, 41 Wn.2d 106, 247 P.2d 549 (1952); King County v. Port of Seattle, 37 Wn.2d 338, 223 P.2d 834 (1950); State ex rel. Hays v. Wilson, 17 Wn.2d 670, 137 P.2d 105 (1943); Agronic Corp. of America v. deBough, 21 Wn. App. 459, 585 P.2d 821 (1978); Hendricks v. Lake, 12 Wn. App. 15, 528 P.2d 491 (1974); Tyler v. Van Aelst, 9 Wn. App. 441, 512 P.2d 760 (1973).

Hamilton, J. Plaintiffs (appellants) appeal from an order granting defendants’ (respondents’) motion for judgment notwithstanding the verdict. On September 18, 1959, at about 11:30 p. m., plaintiff Laura K. Frasch (hereafter referred to as if she were the sole plaintiff) and her teenage son were returning from a high school dance attended by her son. Plaintiff was traveling north on Pacific Avenue (also known as the Mountain Highway) in Pierce County, Washington. Pacific Avenue, in the vicinity in question, is a straight, fairly level, 60-mile an hour, four-lane highway, the north and southbound lanes being separated by double yellow lines. It had been raining and misting, the pavement was wet, the night was dark, and visibility was correspondingly affected. Several automobiles, returning from the school dance, were traveling north, some with their windshield wipers on, at speeds varying from 35 to 50 miles an hour. Approaching an unlighted intersection, at which she wished to turn west, plaintiff, traveling in the outside or easterly lane of travel, slowed down and prematurely turned sharply across the passing or inside northbound lane. A collision occurred between her vehicle and a northbound vehicle (hereafter referred to as the Salsberry vehicle) approaching in the passing lane. As a result of the collision, the Salsberry vehicle was disabled and came to rest headed north in the northbound passing lane. Its head and taillights remained on. Plaintiff’s vehicle, still operable, came to rest headed south in the southbound lanes. Some words concerning fault were exchanged between the occupants of the respective vehicles, and from its position in the southbound lanes plaintiff drove her vehicle to the westerly-shoulder of Pacific Avenue and parked it. Plaintiff and her son then returned on foot to the Salsberry vehicle, purportedly to render assistance, survey the damage, and exchange identification. In the meantime, two automobiles, traveling behind plaintiff’s vehicle in the outside northbound lane, stopped and parked off the highway north of the scene. The two occupants of the Salsberry vehicle alighted and the owner, thinking plaintiff had left the scene, requested the occupants of the first following vehicle to remain as witnesses. The occupants of the second vehicle walked to the front of the Salsberry vehicle, where plaintiff, her son, and the two occupants of the Salsberry vehicle were beginning to assemble, inquired of the Salsberry occupants about flashlights or flares, following which one left to notify the state patrol. The Salsberry occupants noticing headlights approaching from the south in both the outside and passing lanes, commented upon the potential danger thereof and commenced running toward the south in an effort to warn the approaching vehicles by waving and shouting. The plaintiff, at this time, was either just arriving or standing in mid-front of the Salsberry vehicle observing the damage to the vehicle. She disclaims, under the stress of the moment, knowledge of impending danger, knowledge of who or how many persons were present, hearing the conversations about flashlights, flares or approaching vehicles, and hearing or seeing, until the last moment, any approaching vehicle. Defendants’ automobile was the vehicle approaching in the passing lane. It was operated by 16-year-old Jeanette Leedom, who was returning from the school dance with several girl friends as passengers. It struck the rear of the Salsberry automobile causing it to run over and injure plaintiff. An interval, variously estimated between a few seconds and 3 minutes, elapsed between collisions. Defendants’ vehicle, according to defendants’ evidence, had, for some distance preceding the collision, been traveling at a speed of 40 to 50 miles an hour in the outside lane behind another vehicle driven by one Gary Justice. Approximately 1% to 2% blocks (600 to 900 feet) from the point of impact, the Justice vehicle slowed down, the driver having observed the confusion ahead. Defendant driver then turned into the inside lane and commenced passing the Justice vehicle. Thereafter, defendant driver noticed for the first time the taillights of the Salsberry vehicle. On both direct and cross-examination defendant driver explained her reaction substantially as follows: “A. Well, when I first saw it I thought it was any ordinary car and as I got closer it looked like it was going slow, and then that’s when I let my foot up off the accelerator. Then when I got closer I knew it wasn’t going, that it had stopped, and naturally I proceeded to apply my brakes.” A passenger in a vehicle traveling a few car lengths behind defendants’ automobile estimated defendants’ brake lights came on a distance of 150 feet before impact. The occupants of the Salsberry vehicle, who in their attempts to warn approaching traffic had reached a point 20 to 30 feet behind the disabled vehicle, estimated defendants’ vehicle started skidding 40 to 60 feet south of them. A state patrol officer measured 48 feet of skid marks from the point of impact. Three following vehicles experienced difficulty in avoiding further collisions. Plaintiff, alleging negligence, instituted action against defendants. Defendants, joining issue, affirmatively alleged contributory negligence and volenti non fit injuria, counterclaimed for injury and property damage, and by cross-claim joined as additional party defendants the driver and owner of the Salsberry vehicle. At the conclusion of the evidence, the trial court held defendant driver guilty of negligence as a matter of law, dismissed defendants’ counterclaim and cross-claim, and submitted to the jury the issues of plaintiff’s contributory negligence and the first phase of the doctrine of last clear chance. The jury returned a verdict for plaintiff. The trial court granted defendants’ motion for judgment notwithstanding the verdict upon the grounds that plaintiff was guilty of contributory negligence as a matter of law and that the doctrine of last clear chance was inapplicable. The trial court alternatively granted a new trial. Plaintiff assigns error to the trial court’s action and, in the event of a new trial, to certain instructions given and refused. Defendants, pursuant to Rule on Appeal 16, RCW Vol. 0, assign error to the trial court’s rulings related to defendants’ negligence, the applicability of the doctrine of volenti non fit injuria, and to certain instructions given and refused. Our review of the record convinces us the trial court erred in granting judgment notwithstanding the verdict, and correctly granted a new trial. We so conclude because we are satisfied the trial court erred in (a) ruling defendants guilty of negligence as a matter of law, (b) ruling plaintiff guilty of contributory negligence as a matter of law, and (c) submitting to the jury the doctrine of last clear chance. In discussing the reasons for our conclusions, in the order above listed, we do so in the light of the oft-cited rule that a challenge to the sufficiency of the evidence, a motion for dismissal or for directed verdict, or a motion for judgment notwithstanding the verdict admits the truth of the opponent’s evidence, together with all reasonable inferences arising therefrom, and requires a most favorable interpretation thereof. No element of discretion is involved, and such motions can be granted only when the court can say, as a matter of law, there is no substantial evidence to support the opponent’s claim. Williams v. Hofer, 30 Wn. (2d) 253, 191 P. (2d) 306; Lambert v. Smith, 54 Wn. (2d) 348, 340 P. (2d) 774; Miller v. Payless Drug Stores of Washington, 61 Wn. (2d) 651, 379 P. (2d) 932. The trial court’s determination that defendant driver was guilty of negligence as a matter of law of necessity must rest upon a premise of the driver’s failure to timely observe and realize that the Salsberry vehicle was stationary. Defendant driver testified she first observed the Salsberry taillights from a distance of about one block (300 to 400 feet) after moving, from behind another vehicle, into the passing lane at a speed of from 40 to 50 miles an hour. Thereafter her sequential impressions were that the disabled vehicle was moving normally, traveling slowly, standing still. When the latter realization took place, the evidence indicates, she applied her brakes, at a point between 48 to 150 feet from the disabled vehicle, attempted evasive action, and skidded upon the wet pavement into collision. With but slight factual and distance variations, we deem our observations in Davis v. Browne, 20 Wn. (2d) 219, 226, 147 P. (2d) 263, most apt: “The mere fact that Davis did not realize that the Browne car was stationary upon the highway until he himself was within approximately one hundred feet of it cannot be said to constitute negligence on his part regardless of all other circumstances. It was, of course, his duty to exercise reasonable care, under the existing circumstances, to observe the presence of the automobile ahead of him and avoid coming in contact with it. . . . “As suggested by the trial court in its memorandum decision, any experienced driver of an automobile knows how difficult it sometimes is during the hours of night to determine whether a car ahead of him showing red taillights is actually moving, or at what speed it is moving, or whether it is stopping, or has in fact stopped. It would be most natural for one to assume that a car ahead of him, particularly if it were occupying the middle of the road, was proceeding forward rather than standing still in violation of positive law. “In this instance, Davis was traveling along a course and at a rate of speed in conformity to law. Seeing the car ahead and thinking that it was in motion, he veered slightly to his left when two hundred fifty feet away, with the evident intention of overtaking and passing that car. Had the car ahead been moving, Davis most probably would have succeeded in passing it in safety. It was not until he was within approximately one hundred feet of the Browne car, that either he or his companions realized that it was standing still. We are unable to say that the trial court was in error in refusing to hold that, under the existing circumstances, Davis was guilty of negligence in not sooner discovering that the Browne car was stationary.” Viewing defendants’ evidence in the favorable light required, we conclude that the trial court erred in determining defendant driver guilty of negligence as a matter of law. The trial court, in ruling upon defendants’ motion for judgment notwithstanding the verdict, determined plaintiff to be guilty of contributory negligence as a matter of law. The trial court, in so holding, stated in its order: “. . . The Court erred in submitting to the jury the issue of the plaintiff’s negligence. She entered upon the highway as a pedestrian, while under no duty so to do, and stood immediately in front of the disabled Salsberry vehicle, and remained in said position for an appreciable length of time. She made no observation whatever, either while proceeding upon the highway or standing there with respect to oncoming traffic. Her negligence continued to the moment of her injury and at no time was she in a position where she could not have avoided such injury by merely stepping to one side or the other.” In essence, plaintiff testified she returned, as a participant in the accident, to the Salsberry vehicle to observe the damage, to render any assistance necessary, and to exchange identifications. This she contends was in compliance with her duty under RCW 46.52.020 (3) . Under such circumstances, her duty of care was not that of the ordinary pedestrian. In See v. Willett, 58 Wn. (2d) 39, 44, 360 P. (2d) 592, after reviewing our previous decisions dealing with persons standing or moving about vehicles on or near a highway, we stated the duty of care, incumbent upon persons in plaintiff’s situation, to be as follows: “A person who stands upon the highway must exercise reasonable care for his own safety; and whether the person has complied with this requirement must depend upon all of the circumstances of the case.” The circumstances presented by the evidence in the instant case reveal uncertainty as to the time plaintiff was actually in front of the Salsberry vehicle (the estimates varying from a few seconds to 2 or 3 minutes), the number of people there at varying times, whether plaintiff could or did overhear conversations relating to potential danger, and whether, after plaintiff observed or in the exercise of care should have observed, the approaching headlights of defendants’ vehicle, she could have avoided injury. Viewing the evidence in the favorable light required, we conclude, as in the See case, the issue of whether plaintiff exercised reasonable care for her own safety, under all the circumstances, became a question for the jury. The trial court erred in ruling otherwise. Plaintiff contends the trial court erred in ruling that the doctrine of last clear chance did not apply. In Leftridge v. Seattle, 130 Wash. 541, 545, 228 Pac. 302, we summarized the doctrine of last clear chance as applied in this state as follows: “Thus we have two different situations to which the last clear chance rule applies. In the one, the plaintiff’s negligence may continue up to the time of the injury if the defendant actually sees the peril; in the second, the plaintiff’s negligence must have terminated if the defendant did not actually see the peril, but by the exercise of reasonable care should have seen it.” In the instant case, the underlying basis of negligence on the part of both plaintiff and the defendant driver, in so far as the applicability of last clear chance be concerned, is inattention or failure to maintain a proper lookout for their own safety and the safety of others. Under the circumstances prevailing, we deem our recent reference in Thompson v. Titus Motor Co., 60 Wn. (2d) 372, 375, 374 P. (2d) 177, most fitting: “It is pointed out in one of the late texts: If an inattentive defendant negligently fails to see an inattentive (but not helpless) plaintiff, the case falls into the category where both plaintiff and defendant are negligently unaware of an impending peril; the plaintiff could have saved himself as long as defendant could have saved him. Under such circumstances, most American courts and the American Law Institute rule1 out last clear chance. 2 Harper and James, Law of Torts § 22.13, p. 1252. “3 2 Restatement of Torts, § 480.” The trial court erred in submitting the first phase of the doctrine to the jury, and correctly concluded on the post trial motions that neither phase of the doctrine applied. A new trial being necessary, we now turn to assignments of error directed by the respective parties to the trial court giving and refusing to give certain instructions. In this respect, it is to be noted that defendants have not assigned error to the dismissal of their counter and cross-claims. The new trial, therefore, is limited to the issues of negligence and contributory negligence revolving about plaintiff’s claim. Plaintiff assigns error to the giving of instructions Nos. 15, 17, 21, 22, 23, and 25, and the failure to give one proposed instruction. Instructions Nos. 15 and 17 deal with plaintiff’s duties as a pedestrian. We deem these instructions inappropriate for the reasons stated in See v. Willett, supra. Plaintiff’s assignments of error directed to instructions Nos. 21, 22, 23, 25, and the failure to give a proposed instruc tion, as argued by plaintiff, revolve about the doctrine of last clear chance and plaintiff’s negligence in connection with the first collision. Absent applicability of the doctrine of last clear chance, the instructions would not appear apropos. Defendants’ assignments of error dealing with instructions revolve about the trial court’s refusal to submit the defense of volenti non fit injuria. The trial court correctly refused such instructions. Defendants, upon the basis of the evidence presented, failed to carry their burden of demonstrating a superior knowledge and appreciation, on the part of plaintiff, of the danger or risk involved in joining other persons at the Salsberry vehicle, or of a wilful consent to the peril of another driver’s inability to avoid a second collision. Viewing the evidence in a light most favorable to defendants’ contention, plaintiff’s conduct would, at best, constitute only contributory negligence involving an unreasonable exposure to danger. The trial court’s order granting judgment notwithstanding the verdict is reversed, and the cause remanded for new trial. Costs will abide the results of retrial. Ott, C. J., Donworth, Finley, and Hunter, JJ., concur. August 29, 1963. Petition for rehearing denied. " . . . Without the necessity of taking a cross-appeal, the respondent may present and urge in the supreme court any claimed errors by the trial court in instructions given or refused and other rulings which, if repeated upon a new trial, would constitute error prejudicial to the respondent.” Rule on Appeal 16, RCW Vol. 0. “(3) The operator of any vehicle involved in an accident resulting in injury to or death of any person or damage to any vehicle which is driven or attended by any person shall give his name, address and vehicle license number and shall exhibit his vehicle operator’s license to any person struck or injured or the operator or any occupant of, or any person attending, any such vehicle collided with and shall render to any person injured in such accident reasonable assistance, including the carrying or the making of arrangements for the carrying of such person to a physician or hospital for medical treatment if it is apparent that such treatment is necessary or if such carrying is requested by the injured person or on his behalf. Under no circumstances shall the rendering of assistance or other compliance with the provisions of this subsection be evidence of the liability of any operator for such accident;” RCW 46.52.020(3).

Hunter, J. — This appeal results from the initiation of a wrongful death action by the plaintiff (appellant), William L. Maltman, as administrator of the estates of John M. Rudock, deceased, Gary Charles Nistler, deceased, and Gerald Rybacki, deceased. On September 4, 1970, a car operated by defendant Peter H. Sauer, and registered in the name of defendant Gerd Sauer, his father, was involved in an automobile accident east of North Bend, Washington. State Trooper W. P. Isom arrived at the scene of the accident at 9:10 p.m., and immediately determined that the defendant, Peter H. Sauer, should be rushed to a hospital for medical attention. Realizing that a military helicopter was available for such emergency situations under a rescue program entitled MAST (Military Assistance to Safety and Traffic), State Trooper Isom put in a request call which was forwarded to army headquarters at Fort Lewis. Rudock, Nistler, Rybacki and Lieutenant Curt Heady, pursuant to their duties as active members of the United States Army, constituted the crew of the helicopter which was dispatched. While en route to the predetermined pickup point, the helicopter crashed and the above parties were killed. The cause of the tragedy, from the record of this case, is uncertain. This action was brought for the benefit of the surviving members of the families of the heretofore mentioned decedents, Rudock, Nistler and Rybacki. It was alleged that the defendant, Peter H. Sauer, was liable in tort under the “rescue doctrine” as it applied to the instant case. On February 13, 1973, the defendant moved for a summary judgment pursuant to CR 56. After argument by both parties to the court, the defendant’s motion was granted. The plaintiff appealed to the Court of Appeals, Division One, and, on June 21, 1974, the matter was transferred directly to this court for review. This case requires an assessment and determination of the scope of the “rescue doctrine.” The “rescue doctrine” gained initial prominence when Justice Cardozo stated in Wagner v. International Ry., 232 N.Y. 176, 133 N.E. 437 (1921), that “danger invites rescue.” In a general sense the “rescue doctrine” is intended to provide a source of recovery to one who is injured while reasonably undertaking the rescue of a person who has negligently placed himself in a position of imminent peril. 4 A.L.R.3d 558, Rescue Doctrine-Negligence (1965). The leading case in this state is French v. Chase, 48 Wn.2d 825, 297 P.2d 235 (1956), in which the plaintiff allegedly injured his shoulder while attempting to free the defendant from a pinned position underneath his car. We stated therein on page 830 that the “rescue doctrine” in this state included the following- elements: (1) There must be negligence on the part of the defendant which is the proximate cause of peril, or what would appear to a reasonable person under the circumstances to be peril, to the life or limb of another. (2) The peril, or reasonable appearance of peril, to the life or limb of another must be imminent. (3) In determining whether the peril, or appearance of peril, is imminent, in the sense that an emergency exists requiring immediate action, the circumstances presented to the rescuer must be such that a reasonably prudent man, under the same or similar circumstances, would determine that such peril existed. (The issue of whether the rescuer’s determination conformed with the reasonably prudent man standard is a question for the jury, under proper instructions.) (4) After determining that imminent peril to the life or limb of a person exists, the rescuer, in effecting the rescue, must be guided by the standard of reasonable care under the circumstances. The defendant does not question the validity of the elements which compose the “rescue doctrine.” Rather, he questions the application of the doctrine to a professional, nonvoluntary rescuer. The plaintiff contends that the classification of the rescuer as voluntary or nonvoluntary is not determinative as to whether a particular party comes within the ambit of the doctrine. We agree, provided certain logical distinctions are made. The court, in Wagner v. International Ry., supra, did not distinguish the volitional from the nonvolitional rescuer. Instead, Justice Cardozo stated on page 181: “It is enough that the act, whether impulsive or deliberate, is the child of the occasion.” We believe that a professional rescuer, in making a deliberate attempt at saving a life, and under the correct factual setting, is within the intended scope of the “rescue doctrine.” The doctrine does not necessitate that an individual be prompted by purely altruistic motives. This is not to say the doctrine applies in the same exact fashion to both voluntary and nonvoluntary rescuers. In the case of a professional rescuer certain hazards are assumed which are not assumed by a voluntary rescuer. The professional rescuer, however, does not assume all the hazards that may be present in a particular rescue operation. This distinction was discussed in Jackson v. Velveray Corp., 82 N.J. Super. 469, 198 A.2d 115 (1964). That case involved the liability of a landowner to a fireman who was injured while discharging his duty as a public employee in extinguishing a fire. The court, citing an earlier decision, stated on page 476: It is contemplated that a fireman in the performance of his duty shall endeavor to extinguish fires however caused and encounter those risks and hazards which are ordinarily incidental to such an undertaking and which may be reasonably expected to exist in the situation in which he places himself. It does not follow that a fireman must be deemed as a matter of law to have voluntarily assumed all hidden, unknown, and extrahazardous dangers which in the existing conditions would not be reasonably anticipated or foreseen. (Italics ours.) See also Walsh v. Madison Park Properties, Ltd., 102 N.J. Super. 134, 245 A.2d 512 (1968); and Krauth v. Israel Geller & Buckingham Homes, Inc., 31 N.J. 270, 157 A.2d 129 (1960). Those dangers which are inherent in professional rescue activity, and therefore foreseeable, are willingly submitted to by the professional rescuer when he accepts the position and the remuneration inextricably connected therewith. Spencer v. B.P. John Furniture Corp., 255 Ore. 359, 467 P.2d 429 (1970). The “rescue doctrine” articulated in French v. Chase, supra, implicitly necessi tatés a special criteria for assessing the applicability of the doctrine in a given case to a professional rescuer. We conclude that the proper test for determining a professional rescuer’s right to recovery under the “rescue doctrine” is whether the hazard ultimately responsible for causing the injury is inherently within the ambit of those dangers which are unique to and generally associated with the particular rescue activity. Stated affirmatively, it is the business of professional rescuers to deal with certain hazards, and such an individual cannot complain of the negligence which created the actual necessity for exposure to those hazards. When the injury is the result of a hazard generally recognized as being within the scope of dangers identified with the particular rescue operation, the doctrine will be unavailable to that plaintiff. This case presents such a hazard. A danger unique to helicopter rescues is the possibility of a mechanical malfunction in the airplane or pilot error, either of which could cause a crash. Therefore, a helicopter crew is specially trained to meet these known hazards. They are hazards inherently within the ambit of those dangers unique to and generally associated with this particular rescue operation. Conversely, these hazards are not hidden, unknown, and extra hazardous dangers which would not be reasonably anticipated or foreseen by the decedent professional rescuers. Jackson v. Velveray Corp., supra. We therefore hold as a matter of law that the “rescue doctrine” was not available to the decedents, and that the defendant’s motion for summary judgment was properly granted by the trial court on this basis. The defendant further argues that in testing the “rescue doctrine” under the traditional formula for recovery in a tort action, irrespective of whether the decedents were professional rescuers, the plaintiff cannot prevail. The courts of this state have consistently recognized the rule that when a plaintiff brings an action in tort, regardless of the particular doctrine relied upon, he has the burden of showing that (1) there is a statutory or common-law rule that imposes a duty upon defendant to refrain from the complained-of conduct and that is designed to protect the plaintiff against harm of the general type; (2) the defendant’s conduct violated the duty; and (3) there was a sufficiently close, actual, causal connection between defendant’s conduct and the actual damage suffered by plaintiff. Rikstad v. Holmberg, 76 Wn.2d 265, 268, 456 P.2d 355 (1969). Basically, the defendant contends that the facts, as alleged by the plaintiff, clearly fail to meet the requirements of elements (1) and (3) above. He argues that under these circumstances, the questions of duty, foreseeability, and proximate cause present issues of law for the court, and therefore the trial court’s order granting summary judgment on this basis was proper. In response, the plaintiff contends that a jury question has properly been presented on whether or not the defendant’s initial negligence started a chain of events which continued until the helicopter crashed. Furthermore, the plaintiff argues that sufficient facts have been alleged to require a jury trial on the specific issues of duty, foreseeability, and proximate cause. We agree with the defendant. The question of duty encompasses the concept of foreseeability. As we stated in Rikstad v. Holmberg, supra at 268: The better considered authorities do not regard foreseeability as the handmaiden of proximate cause. To connect them leads to too many false premises and confusing conclusions. Foreseeability is, rather, one of the elements of negligence; it is more appropriately attached to the issues whether defendant owed plaintiff a duty, and, .if so, whether the duty imposed by the risk embraces that conduct which resulted in injury to plaintiff. The hazard that brought about or assisted in bringing about the result must be among the hazards to be perceived reasonably and with respect to which defendant’s conduct was negligent. (Italics ours.) Thus the harm sustained must be reasonably perceived as being within the general field of danger covered by the specific duty owed by the defendant. There is no dispute that some duty did exist on behalf of the defendant, since the danger created by the defendant’s negligence did invite rescue. However, the accident suffered by the helicopter crew was too remote from the actual realm of peril created by the defendant’s original negligence to come within that duty. The defendant’s duty only encompassed those hazards which were legally attributable to that conduct which initiated the rescue activity. We therefore conclude that in order for the “rescue doctrine” to apply and come within the traditional formula of a tort action, the plaintiff must show that his injury was attributable to a cause which was within the reasonably foreseeable realm of peril created by the defendant’s original negligence, yet outside those dangers invariably involved in flying a rescue helicopter. Under the facts of this case, it is inconceivable that the defendant owed a duty to the plaintiff to assure against a helicopter crash en route to the predetermined pickup point. In addition to the questions of duty and foreseeability, the issue of proximate cause presents a formidable roadblock to the plaintiff’s case. Regardless of whether a plaintiff is a voluntary or professional rescuer, he must show that the defendant’s negligence was the proximate and legal cause of his injury. A finding of proximate cause is' premised upon proof of cause in fact, as well as the legal determination that liability should attach. King v. Seattle, 84 Wn.2d 239, 525 P.2d 228 (1974). Cause in fact requires proof that “there was a sufficiently close, actual, causal connection between defendant’s conduct and the actual damage suffered by plaintiff.” Rikstad v. Holmberg, supra at 268. This general statement of the law is consistent with the fourth requirement of the “rescue doctrine” as enunciated in the French case, wherein we stated that in order for the plaintiff to recover, he must be in the process of “ef fecting the rescue.” Furthermore, in the case of Hawkins v. Palmer, 29 Wn.2d 570, 188 P.2d 121 (1947), we noted on page 575 that to invoke the doctrine the defendant must be guilty of some negligence toward the rescuer after he, the rescuer, has begun to attempt the rescue. (Italics ours.) The original negligence of the defendant, which placed him in his present imperiled predicament, must be an active factor in the course of events which ultimately culminates in injury to the plaintiff. In other words, the plaintiff’s injury must not be the result of an intervening cause which came into active operation after the negligence of the defendant has ceased. We recognize that intervening causes present a confusing anomaly in the field of tort law due to the continued use of “foreseeability” as the controlling criteria for determining if a cause is truly intervening while, at the same time, holding that “foreseeability” is not an aspect of proximate cause. This is compelled simply by “sheer necessity and in default of anything better” to use as a judicial standard. W. Prosser, Torts § 44, at 272 (4th ed. 1971). The trier of fact must determine if an intervening act has broken the causal chain between the conduct of the defendant and the injury of the plaintiff. If the act itself is not foreseeable — in other words, if the act is an intervening, efficient cause — it will break the causal connection between the defendant’s negligence and the plaintiff’s injury. Qualls v. Golden Arrow Farms, Inc., 47 Wn.2d 599, 602, 288 P.2d 1090 (1955). “Where such intervening act or force is not reasonably foreseeable, it must be regarded as a superseding cause negating the claim of proximate or legal cause.” Cook v. Seidenverg, 36 Wn.2d 256, 264, 217 P.2d 799 (1950); and Mehrer v. Easterling, 71 Wn.2d 104, 109, 426 P.2d 843 (1967). In this case, the injuries resulted not directly from the defendant’s negligence but, rather, from an intervening cause only tenuously related and totally unforeseeable, in a causal sense, to the original condition attributable to the defendant’s conduct. The record fails to show a sufficiently close, actual causal connection between the tragedy which struck the decedents and the original negligence of the defendant in causing an automobile accident. It is our opinion that neither the record actually presented, nor any inference logically attributable thereto, could, in law, lead to a result favorable to the plaintiff. In summary, the plaintiff should be denied recovery in this case for the reasons that: (1) the decedents, as professional rescuers, did not come within the “rescue doctrine” under the facts of the case; and (2) as a matter of law, the plaintiff failed to establish a right to recovery under the traditional formula of tort law. The judgment of the trial court is affirmed. Hale, C.J., and Finley, Rosellini, Hamilton, Stafford, Wright, Utter, and Brachtenbach, JJ., concur.

Andersen, J. Facts of Case This case of first impression in this state involves sexual harassment at the workplace. Two female employees brought suit against their employer, Georgia-Pacific Corporation, alleging sex discrimination in violation of RCW 49.60 and the tort of outrage. The complaint of a third female employee was severed from this suit and continued until a later date. Following a trial to the court, extensive findings of fact were entered. The findings are unchallenged on appeal; therefore, we consider them as verities for purposes of the appeal. Some factual details, as found by the trial court in this case, must be recounted in order to delineate the egregious pattern of conduct the two female workers were subjected to on the job. From October 1979 until January 1982, David Long, a male co-worker, on several occasions "would place his hands on [one of the plaintiff's] hips and rub his crotch across her back side as he was passing". One night at work this co-worker "approached her, staring at her breasts. He then placed his hand on her right breast without any welcome or invitation". He "molested" this plaintiff another time "by approaching her from behind and grabbing her buttocks with his hands". As early as November 1979 the plant manager knew this male employee was "using abusive language around female employees" and had "touched or fondled" this plaintiff and another female employee "in an unwanted sexual way". No corrective or disciplinary action was taken. Complaints of the co-worker's "other intimidating behavior" toward this plaintiff were lodged again in mid-1981, this time to a plant superintendent who acknowledged that other female employees, including the other plaintiff in this action, were also having problems with this male co-worker. Shortly thereafter, this plaintiff began to hear threats and complaints concerning her job performance purportedly coming from the plant manager. The other plaintiff had been working for the employer for only a month when the same male co-worker began to press himself against her in the same manner as he passed by her. A complaint was lodged with the plant superintendent. The male co-worker would also stare at her "in a sexually intimidating way, follow her about the plant, in such a way that it intimidated her, [and] interfered with her work performance". She tried to avoid him and informed the plant manager "who did nothing". She and yet another female employee confronted the plant manager about this "continued sexual harassment". The male co-worker was finally transferred to another shift, but his course of intimidation continued. In addition, other employees, including a supervisor, acted "in an intimidating fashion" toward this plaintiff because of her complaints. Not until February 1982 was the male co-worker given a 3-day suspension "based on his prior acts of sexual harassment". One of the plaintiffs suffered "severe emotional anguish and distress demonstrated by physical symptoms" of various kinds. She resigned in December 1981 after working less than 9 months. The other plaintiff was "emotionally and psychologically injured" and likewise demonstrated physical manifestations of "severe emotional distress". She resigned in October 1982. The trial court found that as a result of the foregoing acts and inactions, along with other similar ones, a hostile and intimidating work environment was created and it was this which proximately caused severe emotional distress to the plaintiffs. The trial court also found that these facts constituted the tort of outrage but that they did not permit a finding that either of the plaintiffs were constructively discharged from their jobs. Judgment for damages was entered for the employees against the employer in the aggregate sum of $46,875 plus costs and attorneys' fees in the amount of $17,275. The employer appeals and the plaintiff-employees cross-appeal. One principal issue is presented. Issue Did the trial court err in concluding that the employer was liable for sexual discrimination in violation of RCW 49.60? Decision Conclusion. The plaintiff-employees established that they were subjected to uninvited sexual harassment by a co-worker with the actual knowledge of two supervisory personnel who undertook no reasonably prompt and adequate remedial measures to alleviate the resulting hostile and intimidating work environment in which the employees found themselves. The recovery of damages by the plaintiff-employees for the mental and emotional suffering they sustained was an appropriate remedy for such unlawful sexual discrimination. In the interest of readability, the citations in this opinion have been placed in the margin wherever feasible. The Legislature has declared practices of discrimination because of sex to be matters of state concern. RCW 49.60-.010. In furtherance of this concern, a state statute provides that "[i]t is an unfair practice for any employer . . . [t]o discriminate against any person in compensation or in other terms or conditions of employment because of such person's . . . sex", RCW 49.60.180(3), and another requires that such provision "be construed liberally for the accomplishment of the purposes thereof," RCW 49.60.020. Yet another statute provides that persons injured by such violations shall have a civil action to recover actual damages, costs and attorneys' fees. RCW 49.60.030(2). In the case before us, the allegations of the plaintiff-employees were to the effect that certain acts and conduct of other employees of the employer constituted sexual harassment; that this harassment, which was known to exist by various of the employer's supervisory personnel, created a hostile and intimidating work environment thereby depriving them of the opportunity to work free of sexual discrimination; and that this discrimination caused them severe physical, mental and emotional distress. Thus the plaintiffs' claim essentially is that their employer implicitly, but effectively, made their endurance of sexual intimidation a term or condition of their employment. These allegations are actionable under this state's Law Against Discrimination, RCW 49.60. Sexual harassment as a working condition unfairly handicaps an employee against whom it is directed in his or her work performance and as such is a barrier to sexual equality in the workplace. In assessing the viability of a sexual harassment claim under federal law, one court posited this rhetorical question: "How then can sexual harassment, which injects the most demeaning sexual stereotypes into the general work environment and which always represents an intentional assault on an individual's innermost privacy, not be illegal?" Under the facts as found by the trial court, this is not a quid pro quo sexual harassment case, that is, it is not a situation where an employer requires sexual consideration from an employee as a quid pro quo for job benefits. It is, rather, a case wherein the employee seeks to hold the employer responsible for a hostile work environment created by a supervisor or co-worker's sexual harassment of the employee. As the Supreme Court of Minnesota held in construing an anti-sex discrimination statute similar to ours: In our view, the Act does not impose a duty on the employer to maintain a pristine working environment. Rather, it imposes a duty on the employer to take prompt and appropriate action when it knows or should know of co-employees' conduct in the workplace amounting to sexual harassment. Continental Can Co. v. State, 297 N.W.2d 241, 249 (Minn. 1980). To establish a work environment sexual harassment case, the better reasoned rule is that an employee must prove the existence of the following elements. 1. The harassment was unwelcome. In order to constitute harassment, the complained of conduct must be unwelcome in the sense that the plaintiff-employee did not solicit or incite it, and in the further sense that the employee regarded the conduct as undesirable or offensive. 2. The harassment was because of sex. The question to be answered here is: would the employee have been singled out and caused to suffer the harassment if the employee had been of a different sex? This statutory criterion requires that the gender of the plaintiff-employee be the motivating factor for the unlawful discrimination. 3. The harassment affected the terms or conditions of employment. Casual, isolated or trivial manifestations of a discriminatory environment do not affect the terms or conditions of employment to a sufficiently significant degree to violate the law. The harassment must be sufficiently pervasive so as to alter the conditions of employment and create an abusive working environment. Whether the harassment at the workplace is sufficiently severe and persistent to seriously affect the emotional or psychological well being of an employee is a question to be determined with regard to the totality of the circumstances. 4. The harassment is imputed to the employer. Where an owner, manager, partner or corporate officer personally participates in the harassment, this element is met by such proof. To hold an employer responsible for the discriminatory work environment created by a plaintiff's supervisor(s) or co-worker(s), the employee must show that the employer (a) authorized, knew, or should have known of the harassment and (b) failed to take reasonably prompt and adequate corrective action. This may be shown by proving (a) that complaints were made to the employer through higher managerial or supervisory personnel or by proving such a pervasiveness of sexual harassment at the workplace as to create an inference of the employer's knowledge or constructive knowledge of it and (b) that the employer's remedial action was not of such nature as to have been reasonably calculated to end the harassment. As to element 4, the trial court found: In the case at bar, [the employer] knew or should have known that [the male co-worker's] unwelcome sexual advances and other verbal or physical conduct of his [s¿e] sexual nature were unreasonably interfering with [the plaintiffs'] work performance and/or created an intimidating, hostile or offensive working environment. Further, no reasonable immediate or appropriate corrective action was taken to remedy the situation. Finding of fact 54. This finding is amply supported by the record; it is also unchallenged on appeal. The plaintiffs have proved the requisite elements necessary to establish their claim of sexual discrimination. Accordingly, the plaintiffs were entitled to recover damages for physical, emotional and mental suffering as they did. This case comes before us after the harm has been done to the employees and a money judgment entered against the employer. Nonetheless, we view the essential purpose of the cause of action, which we herein recognize, to be preventive in nature. As the fourth element of the cause of action makes clear, an employer may ordinarily avoid liability by taking prompt and adequate corrective action when it learns that an employee is being sexually harassed. Having decided the liability issue on the basis stated, it is unnecessary to deal with the alternative basis of recovery stated by the trial court, namely that the tort of outrage was committed, other than to point out that even in the presence of reprehensible behavior the strict limiting parameters of that tort remain. Contrary to plaintiff-employees' claim on cross appeal, we agree with the trial court that existence of unlawful discrimination alone is insufficient to support a finding of constructive discharge from employment. Moreover, the evidence in this case was not sufficient to convince the trial court, as the trier of fact, that either of the employees' resignations constituted a constructive discharge such as to justify additional damages on account thereof. On the record before us we cannot conclude this was error. Since the plaintiff-employees were awarded their costs and reasonable attorneys' fees at trial in accordance with the antidiscrimination statute, ROW 49.60.030(2), and since they did not seek other relief afforded by the Consumer Protection Act, RCW 19.86, we do not reach the employees' further claim that the trial court erred in concluding that there was no violation of the Consumer Protection Act. Plaintiffs did not comply with RAP 18.1; therefore, they are not entitled to attorneys' fees on appeal. Affirmed. Williams, C.J., and Utter, Brachtenbach, Dolliver, Dore, Dimmick, and Pearson, JJ., concur. Bundy v. Jackson, 641 F.2d 934, 945 (D.C. Cir. 1981). Interpretations of Title VII, § 703 of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(a)(1) (1982) are not binding on this court, but are instructive and lend support to our decision herein. See Davis v. Department of Labor & Indus., 94 Wn.2d 119, 615 P.2d 1279 (1980). See generally Barrett v. Omaha Nat'l Bank, 726 F.2d 424 (8th Cir. 1984); Katz v. Dole, 709 F.2d 251 (4th Cir. 1983); Henson v. Dundee, 682 F.2d 897 (11th Cir. 1982); Bundy v. Jackson, 641 F.2d 934 (D.C. Cir. 1981). RCW 49.60.030(2); Human Rights Comm'n v. Cheney Sch. Dist. 30, 97 Wn.2d 118, 124, 641 P.2d 163 (1982); Ellingson v. Spokane Mortgage Co., 19 Wn. App. 48, 57-58, 573 P.2d 389 (1978). See Bundy, 641 F.2d at 947. See Contreras v. Crown Zellerbach Corp., 88 Wn.2d 735, 565 P.2d 1173 (1977). See generally Henson, 682 F.2d at 907-08; Nolan v. Cleland, 686 F.2d 806, 812-13 (9th Cir. 1982). See also Johnson v. Bunny Bread Co., 646 F.2d 1250, 1256 (8th Cir. 1981).