State Ex Rel. Jugler v. Grover , 102 Utah 41 ( 1942 )

I dissent.

The opinion poses the question: Was the position to which Grover was appointed an office created — within the meaning of the constitutional inhibition — by the legislature of which he was a member?

In answering such question in the affirmative the opinion holds:

(1) That "the purpose and intent of such constitutional provisions [as ours] are to insure that no member of the legislature during the period for which he was elected can profit or obtain any office by virtue of any enactments of the legislature of which he is a member."

(2) "Had it not been for the enactment [of 1941], for the law passed, by that legislature the office to which Grover has been appointed would not have existed as an office to be filled by appointment of the governor."

(3) Grover was a member of that legislature.

Hence, the appointment of Grover violated the purpose and intent of the constitutional provision in question.

It must be conceded that if the purpose and intent of Section 7, Article VI, is as comprehensive as stated in the opinion, then the conclusion reached is sound. Our inquiry then must be directed to whether the purpose and intent of our constitutional provision is accurately stated. I think it is not; hence, I am of the opinion that the decision, arguing logically from an erroneous premise, necessarily reaches a wrong conclusion.

Rather than, as stated by Mr. Justice LARSON, the intent of that part of Section 7, Article VI, with which we are now concerned, was that therein literally expressed: To prohibit the appointment or election during the term for which he was elected, of a member of the legislature to any civil office of profit, which was created — i.e., brought into being — during such term. Its purpose — the reason for its adoption — was doubtless that given by Story as quoted on page 6 of the opinion of Mr. Justice LARSON [125 P.2d 812], read in the light of its context:

"to take away as far as possible, any improper bias in the vote of the representative"

where such vote has to do with the creation of an office. That such is the intendment of the quotation is evident from the discussion by Justice Story, as to whether the provision is as comprehensive as it should be, in the paragraph next succeeding that from which the quotation is taken.

"It might well be deemed harsh," says the author, "to disqualify an individual from any office, clearly required by the exigencies of the country, simply because he had done his duty. And, on the other hand, the disqualification might operate upon many persons who might find their way into the national councils, as a strong inducement to postpone the creation of necessaryoffices, lest they should become victims of their high discharge of duty. The chances of receiving an appointment to a newoffice are not so many or so enticing as to bewilder many minds; and if they are, the aberrations from duty are so easily traced that they rarely or never escape the public reproaches. And if influence is to be exerted by the executive for improper purposes, it will be quite as easy, and in its operation less seen and less suspected, to give the stipulated patronage in another form, either of office or of profitable employment,already existing." (Italics added.)

That the intent and purpose of the provision is as confined as I have indicated seems to me evident from the nature and scope of the problem of policy there dealt with, the words therein used, and the wealth of material upon which the drafters had to draw — the choices of policy which must have been presented to their minds — in dealing with such problem.

The problem to be dealt with was venality. Its dimensions were well known in 1895. It had theretofore often and variously manifested itself in public life. It was not the product of the machine age, the passing of frontiers, or social and industrial developments. It was and is the corrupt product of a quality of human nature confined to no age, class, or race — self interest.

In the drafting of a constitutional provision having to do with the problem in the limited field of eligibility of a member of the legislature to other offices in the state, the Constitutional Convention would doubtless, it appears to me, have attempted an exact definition of ineligibility. They were not dealing with a subject — as in the drafting of other provisions they doubtless were — which it would appear wise to deliberately leave open to the hazards of interpretation. The subject dealt with, as I have heretofore pointed out, and the words used in the provision are such as to evidence that Section 7, Article VI, is not a constitutional provision which may be conceived of as having an expanding meaning, devised that its application may meet changing conditions in the field with which it deals.

I do not understand that the opinion argues the contrary. The thought is nowhere therein suggested that because the practice of rewarding, by appointment to office, legislators who do as the executive bids has in recent years become an accepted one; the provision should be given an expanded meaning in order to preserve legislative independence. But if the words therein used mean today what they meant when written in 1895 and what they meant when written into the United States Constitution in 1789, their interpretation should not be a difficult task.

"The word `create' means to cause to exist or to bring into existence something which did not exist." State v. Gooding,22 Idaho 128, 124 P. 791, 792; Mayor Commissioners v.Green, 144 Md. 85, 124 A. 403.

An office is something distinct from a vacancy in office; and the words "creation of an office" do not include within their meaning "creation of an office or a vacancy therein."

That it was not the intent of the framers of our Constitution to extend the ineligibility beyond that literally expressed is clear when we consider other evidences of that intent. They contemplated that the legislature would immediately create certain offices and from time to time as the need arose create others; and they provided that it should do so. The same phraseology is used in referring to such act as is used in Section 7, Article VI. Thus, in Section 10, Article VII, they speak of "officers whose offices are established by this Constitution, or which may be created by law." The last three quoted words can have no other meaning than that I have ascribed to those in the ineligibility provision. While I am aware that the same words used in different parts of an instrument may have different meanings because of their context, or other evidence of differing intent, there is no evidence in the context or otherwise that actual creation of office was not the concept which the words were used to express in the one provision as it was in the other.

Again, at the time of the adoption of our state Constitution there were in existence forty-four other state charters. Most of them had a provision dealing with ineligibility to other office of members of the legislature. They were of varying import. Some of them were identical to Section 7, Article VI. Others made the ineligibility very much broader. For example, Montana's charter (Article V, Sec. 7) extended the ineligibility to appointment or election to any civil officer under the state during the term for which the member was elected. North Dakota (Article II, Sec. 39) after using the identical language of our constitution goes on to provide

"nor shall any member receive any civil appointment from the governor, or governor and senate, during the term for which he shall have been elected."

Others made the ineligibility as to created offices extend only to appointment and not to election. A reading of the proceedings of the Constitutional Convention will reveal — though it could well be assumed without doing so — that the provisions of other state charters were carefully considered and compared by the members appointed to draft provisions of our charter. They chose a provision which encompasses a smaller field of ineligibility than did many of those examined.

In speaking of a statutory provision of the same import as our constitutional provision, the Supreme Court of Idaho in State v. Gooding, supra, said:

"Disqualifications for holding office will not be extended to persons who do not come clearly within the scope of the statute or constitutional provision making such disqualification."

See, also, 46 C.J. 937. While the cases in support of the rule as stated in Corpus Juris deal with statutory provisions, I know of no reason why it should not be applied in construing the constitutional one here in question.

A practice was prevented by the use of the words employed literally construed which if not prevented would work much more detrimentally to the people of the state than would any practice not prevented unless the meaning of the words under discussion be expanded. It was this: In proposals before the legislature for the creation of offices, in the determination of whether public moneys should be expended for a proposed expansion of governmental activity, or whether the sovereign power should interpose itself in certain affairs of the citizens, the members of the legislative body should not have their judgment influenced in matters of such great concern by anticipated benefits which might flow to them by the very act of creation. Thus venality to this extent would be curbed.

The constitutional provisions of several of the states from the opinion of whose courts quotation is made in the opinion of Mr. Justice LARSON relative to the purpose and effect of such provision, contain much more comprehensive language than that under examination. This is pointed out in the opinion as to several of such jurisdictions. It is true also of South Dakota, Oklahoma, and Minnesota. The South Dakota constitutional provision (Article III, Sec. 12) discussed inPalmer v. State, 11 S.D. 78, 75 N.W. 818, from which quotation is made in the opinion of Justice LARSON is of the same import as that of North Dakota set out above — as is that of Oklahoma, the asserted purpose of which provision is contained in the quotation from Baskin v. State, 107 Okla. 272, 232 P. 388, 40 A.L.R. 941. See Article V, Sec. 27, Constitution of Oklahoma. The Constitution of Minnesota (Article IV, Sec. 9) provides that no member of the legislature shall hold any office under the state during his term, nor, where the office has been created during a session of which he is a member, for one year after the end of his term.

In considering the excerpts from California cases contained in the opinion of Justice LARSON which speak of the purpose of the act as amended in 1916 a reading of the early case of People exrel. McCoppin v. Burns, 53 Cal. 660, is instructive as to the intent of the unamended act. It appears from the opinion and an examination of the statutes referred to therein that the Board of State Harbor Commissioners consisting of three members were, under the act approved March 5, 1864 (Statutes of California 1863-64, Chap. CLXIX, p. 138), creating the office, elected: One by the people of the state at large, one by the electors of the City and County of San Francisco, and one by the members of the Senate and the Assembly.

By an act approved February 28, 1876 (see Amendment to the Codes 1875-76, Chap. CIV, p. 32) the appointment of such commissioners was vested in the governor with the consent of the senate.

Relator was a Senator at the time of the passage of the last-mentioned act. He was, by the Governor, appointed Harbor Commissioner before the expiration of his legislative term. Relator was held not to be ineligible to appointment thereto under Sec. 20, Article 4 of the California Constitution, which, in so far as appointive offices are concerned, was identical with Sec. 7 of Article VI of our constitution.

The court apparently adopted the view of relator printed in the report, viz.:

"The Act of February 28th, 1876, only changed the method of filling, and remodeled the duties and functions of the office —it existed all the time. * * * The office does not come within the letter or spirit of the constitutional inhibition." (Italics added.)

The language used in the cases referred to should not impel us to assume such purpose or intent under the provision of our charter. Rather we should glean its intent from the words used in the absence of other constitutional provisions which might modify them or other compelling evidence that they mean more than they literally say. With respect to cases cited in the main opinion from jurisdictions other than those just referred to as having different constitutional provisions from our own, they are, for the most part, readily distinguishable. In the case of State v.Clausen, 107 Wn. 667, 182 P. 610, the statute actually brought into existence the industrial code commission, appointment to which commission, the court held, could not be made from the legislature. In Gibson v. Kay, 68 Or. 589,137 P. 864, a member of the legislature was prohibited from being appointed to the office of assistant to the corporation commissioner when the latter office was created by the legislature of which the appointee was a member. In Kimble v.Bender, 173 Md. 608, 196 A. 409, the office of justice of the peace was already in existence, but the legislature increased the number of such justices. The court held that increasing the number of officers for justices of the peace was the same as the creation of a new office.

While I can give personal assent to everything which is said in the forceful opinion of Mr. Justice LARSON, which argues that as a matter of policy the constitutional provision discussed should be broader than its literal meaning, that expansion should in my opinion be effected by amendment rather than by construction.

Because I am of the opinion that the construction of Section 7, Article VI, given in the main opinion, is beyond its expression and its intendment, and that the appointment of respondent Grover was valid, I am of the opinion that the prayer for a writ of ouster should be denied.