State Ex Rel. Pennick v. Hall , 26 Wash. 2d 172 ( 1946 )

The majority opinion seeks to carry out the constitutional prohibition against a member of the legislature participating in the creation of a new public office or in an increase in the emoluments of an existing office, and thereafter enriching himself by securing his own election or appointment to such office. The section of the constitution under inquiry is Art. II, § 13, which reads as follows:

"No member of the legislature during the term for which he iselected shall be appointed or elected to any civil office in the state which shall have been created, or the emoluments of whichshall have been increased, during the term for which he waselected." (Italics mine.)

I subscribe fully to the rule announced by Judges Blake and Millard in their dissenting opinion in State ex rel. Todd v.Reeves, 196 Wn. 145, 82 P.2d 173, that the constitutional disqualification for a legislator seeking to become a supreme court judge is confined to the period of time during which he was a legislator and not thereafter. Their exact language was:

"It [Art. II, § 13], of course, does not mean that, because defendant was and is a member of the legislature which passed chapter 229, Laws of 1937, he is forever ineligible for the office of judge of the supreme or superior court. It simply means that, in view of the provisions of that chapter, he is ineligible to the office of judge of the supreme or superior court `during the term for which he was elected' to the legislature."

In support of that holding, the Wisconsin case entitled Stateex rel. Ryan v. Boyd, 21 Wis. 210, was cited, and the following language from the opinion in that case was quoted:

"Mr. Justice STORY, in commenting upon a kindred provision in the constitution of the United States, says: `The reasons for excluding persons from offices who have been concerned in creating them, or increasing their emoluments, are to take away, as far as possible, any improper bias in the vote of the representative, and to secure to the constituents some solemn pledge of his disinterestedness. The actual provision, however, does not go the extent of the principle; for his appointment isrestricted only during the time for which he was elected, thusleaving in full force every influence upon his mind, if theperiod of his election is short, or the duration of it isapproaching its natural termination.'"

It seems plain that the language in the constitutional provision, "during the term for which he is elected," used twice, by the way, in one short sentence, means that the legislator shall not be eligible to any civil office in the state which was first created, or the emolument thereof increased, during themember's term in the legislature, and that the legislator cannot occupy such a position during the term for which he was elected.

The county auditor's pay increase is not now in effect and will not be in effect during any part of the period of relator's tenure as a legislator. It will go into effect with the commencement of the auditor's term of office in January, 1947, which will be after the termination of relator's legislative office. The instances to which the constitutional prohibition may readily apply are numerous. The legislature has, on many occasions, created new commissions and new offices, or increased the salary and emoluments of existing offices, to go into effect immediately or at a fixed time within the term of office of thelegislators who brought such change about. See State ex rel.Livingston v. Ayer, 23 Wn.2d 578, 161 P.2d 429.

Surely, it will not be contended that relator would be barred from running for a county office four years from now because she was a member of a legislature which had recognized the rising tide of living costs and, accordingly, increased the salaries of county officials. Where, then, must the line be drawn? I feel that Justice Story's observations contained in the dissent in theTodd case, together with the opinion in State ex rel. Ryan v.Boyd, supra, the Wisconsin case, announce the proper rule.

For the reasons expressed herein, I dissent from the majority.

MALLERY, J., concurs with CONNELLY, J.