State Ex Rel. Hamblen v. Yelle

185 P.2d 723, 29 Wash. 2d 68, 1947 Wash. LEXIS 355

• Court: Washington Supreme Court
• Decided: October 15, 1947
• Docket: No. 30371.
• Status: Published

Opinions

Millard, J.

This is an original application for a writ of mandamus to compel the state auditor to issue a warrant to pay the expenses of the relator incurred under a statute (Laws of 1947, chapter 36, p. 60) of the 1947 legislature creating what is denominated in that statute as a “State Legislative Council.” Respondent demurs to and moves denial of the application upon the ground that, as relator is a member of the legislature which enacted the statute cited, he is disqualified from serving upon the legislative council, as such membership constitutes a civil office which the state constitution, Art. II, § 13, reading as follows, forbids the relator from holding:

“No member of the legislature during the term for which he is elected shall be appointed or elected to any civil office in the state which shall have been created, or the emoluments of which shall have been increased, during the term for which he was elected.”

Chapter 36, Laws of 1947, reads as follows:

“Section 1. There is hereby created a ‘State Legislative Council’ hereinafter referred to as the council, which shall consist of ten senators and eleven representatives from the Legislature of the State of Washington, including the President pro tern of the Senate and the Speaker of the House of Representatives, said council to be appointed by the President of the Senate and the Speaker of the House of Representatives at least ten days before the close of the 1947 session of the Legislature, and at least ten days before the close of each regular session thereafter. The President of the Senate and the Speaker of the House of Representatives shall prepare their lists of appointees so that the whole membership of the council shall include at least one individual from each United States Congressional District within the state and so that not more than twelve of the council members shall be members of any one political party. The said lists of appointees shall be subject to confirmation as to the senate members by the Senate and as to the house members by the House of Representatives. In the event of a failure to appoint council members within the time above stated, or in the event of a refusal by either Senate or House of Representatives to confirm appointments on the council, then the members on the council from either house in which there is a failure to appoint or confirm shall be elected forthwith by the members of such house.

“Sec. 2. The council shall have the following powers and duties: (1) To perform, either through the council as a whole or through subcommittees thereof, all duties and functions customarily delegated to special interim legislative committees;

“(2) To examine and study the administrative organization and procedures of the state government, its offices, boards, committees, commissions, institutions and other state agencies and to make recommendations, where found advisable, directed to the elimination of unnecessary overlapping or duplication of functions, procedures and expendi tures, and to the promotion of economy and efficiency in state government;

“ (3) To make current examination and reports concerning the current condition of all state funds, appropriations and other state moneys; concerning whether or not such appropriations are being currently expended for the purposes and within the statutory restrictions provided by the Legislature; and concerning the current availability of revenue to meet expenditures under appropriations;

“ (4) To make such other studies and examinations of the state government and its state agencies as it may find advisable and to hear complaints, hold hearings, gather information and make findings of fact with respect thereto;

“(5) To receive messages and reports in person or in writing from the Governor or any other state officials and to attend generally to any and all business addressed to or affecting the Legislature during the interim between regular legislative sessions; and

“(6) To make reports from time to time to the members of the Legislature and to the public with respect to any of its findings or recommendations. The council shall keep complete minutes of its meetings. The council shall make and distribute its final report to the members of the ensuing Legislature at least ten days prior to the convening of the Legislature.

“(7) To cooperate, act and function with similar councils or committees of other states, with the Council of State Governments, and with other interstate research organizations.

“Sec. 3. In the discharge of any duty herein imposed, the council and its subcommittees shall have the authority to examine and inspect all files, records and accounts of any state office, department, institution, board, commission or agency, and to administer oaths, issue subpoenas, compel the attendance of witnesses and the production of any papers, books, accounts, documents and testimony, and to cause the deposition of witnesses, either residing within or without the state, to be taken in the manner prescribed by law for taking depositions in civil actions in the superior courts. In case of disobedience on the part of any person to comply with any subpoena issued in behalf of the council, or on the refusal of any witness to testify to any matters regarding which he may be lawfully interrogated, it shall be the duty of the superior court of any county, or of the judge thereof, on application of the council, to compel obedience by pro ceedings for contempt, as in the case of disobedience of the requirements of a subpoena issued from such court or a refusal to testify therein. Each witness who appears before the State Legislative Council by its order, other than a state official or employee, shall receive for his attendance the fees and mileage provided for witnesses in civil cases in courts of record, which shall be audited and paid upon the presentation of proper vouchers signed by such witness and approved by the secretary and chairman of the council.

“Sec. 4. The first meeting of the State Legislative Council shall be held on the third Monday in June, 1947, and thereafter meetings shall be held throughout the legislative interim at such times and at such places as the council may determine. Subcommittees of the council may meet at such additional times and in such places as may be convenient or necessary in carrying out their delegated duties.

“Sec. 5. The council shall have authority to select and employ an executive secretary, together with such other clerical, legal, accounting, research, and other assistants as it may deem desirable, whose compensation and salaries shall be fixed by the council.

“Sec. 6. The members of the council shall be reimbursed for their expenses incurred while attending sessions of the State Legislative Council or meetings of any subcommittees of the council or while engaged on other council business authorized by the council to the extent of fifteen dollars ($15) per day plus five cents (5$) per mile in going and coming from State Legislative Council sessions or subcommittee meetings or for travel on other council business authorized by the council. All expenses incurred by the council, including salaries of employees, shall be paid upon voucher forms as provided by the State Auditor and signed by the chairman or vice-chairman of the council and attested by the secretary of said council, and the authority of said chairman and secretary to sign vouchers shall continue until their successors are selected in each ensuing session of the Legislature. Vouchers may be drawn upon funds appropriated generally by the Legislature for legislative expenses or upon any special appropriation which may be provided by the Legislature for the expenses of the council.

“Sec. 7. The State Legislative Council shall have authority to make its own rules and regulations governing the conduct of its business not otherwise prescribed in this act. The term of office of all council members shall be from time of confirmation or election until the convening of the next session of the Legislature. Vacancies on the council among the senate members of the council may be filled by appointment by the remaining senate members. Vacancies on the council from among the members of the House of Representatives may be filled by appointment by the remaining house members. All such vacancies shall be filled from the same political party as that of the member whose seat was vacated. All of the minutes, records and files of the council and its subcommittees shall be delivered over by the council to the Speaker of the House of Representatives or to the President of the Senate at the convening of each new session of the Legislature, which minutes, records and files shall be held subject to the order of the Senate and House of Representatives, and shall thereafter be delivered over to the members of ,the succeeding legislative council as soon as the newly constituted council has been appointed and organized in each ensuing session of the Legislature.

“Sec. 8. If any section, subsection, paragraph or provision of this act shall be held invalid by any court for any reason, such invalidity shall not in any way affect the validity of the remainder of this act.”

In 1933 (No. 206, p. 321, Mich. Laws of 1933), the legislature of the state of Michigan created by statute a legislative council which was directed to work during the interim between legislative sessions in the gathering of information for the use of the next ensuing legislature. Similar statutes have been enacted by the states of Connecticut, Illinois, Kansas, Kentucky, Maine, Maryland, Missouri, Nebraska, North Dakota, Oklahoma, Pennsylvania, Rhode Island, and Virginia. In Virginia, the committee is denominated “Virginia Advisory Legislative Council.”

The legislature of some of the states call the committee a legislative research committee, joint state government commission, and committee on legislative research; but the committees were all created for the purpose of obtaining information for the use of the next session of the legislature. By constitutional or statutory provision, all of the states listed above, except Rhode Island, prohibit members of the legislature from filling a civil office created by the legislature during the term for which such legislators are elected.

Counsel for respondent contend that the legislative coun cil is a permanent, continuing body given independent existence by the legislature, and that the terms of office of its members are not dependent upon their terms of office as legislators; that, once confirmed or elected, they serve for a specified time, even if they do not continue to be legislators, and that this independent group is empowered by the statute creating it to make forced examinations of the affairs of state offices and to otherwise function in a manner which is alien to the fundamental purpose of the legislature to enact the laws of the state. It is further urged that the investigation authorized is not one to lay the groundwork for possible future legislation and is in no way connected with the fulfillment of the legislative purpose, but is an attempt to control the administration of our laws, clearly manifested by the language of the statute, which contemplates that the council or its agents will, from time to time, examine state funds, appropriations, and other state moneys. It is insisted that subd. (4) of § 2 of the statute, which empowers and makes it the duty of the council to make such other studies and examinations of the state government and its state agencies as it may find advisable, and to hear complaints, hold hearings, gather information, and make findings of fact with respect thereto, removes all limitations and authorizes the council to delve into any phase of an activity or function connected with the state government for any purpose, including those in no way connected with the legislative function. It is argued that the council’s powers' of inquiry, of investigation, and of report, are not in any way restricted to. or co-ordinated with legislative purposes. In other words, the council is not restricted to function as an agency of the legislature. It is further contended that membership on the council constitutes a civil office; and, since relator was a member of the 1947 legislature, which created the council, his membership on that council during his present term of office as a legislator violates Art. II, § 13, of the state constitution quoted above.

Chapter 36, Laws of 1947, provides for the selection of ten senators and eleven representatives by or through the legislature to constitute a “State Legislative Council.” The coun cil is authorized to perform, either through the council as a whole or subcommittees of the council, the duties and functions customarily delegated to special interim legislative committees, and to make reports from time to time to members of the legislature and to the public with respect to any of its findings or recommendations. The council is further required to make and distribute its final report to the members of the ensuing legislature at least ten days prior to the convening of the legislature. The statute vests in the council the usual and necessary power to inspect public records of the state, to administer oaths, compel the attendance of witnesses, and direct the superior courts to act in aid of the committee in compelling witnesses to respond to process of the council.

The authorities are conflicting on the question whether by concurrent resolution the legislature may lawfully create a committee with power to sit after adjournment. In the jurisdictions which approve the power to create such committees by joint resolution, there is no distinction between joint resolutions and statutes, as both require the signature of the governor. The concurrent resolution cases are not, of course, authority for the validity of a single house resolution. With those questions, we are not concerned.

While a single house is not the legislature, and while, according to well-reasoned cases, the legislature cannot by joint resolution create a committee with power to sit after adjournment, we find no authority sustaining the position that interim committees to investigate and report to the next legislature may not be appointed pursuant to a statute duly adopted, and that service of a legislator on such a committee would be in violation of a constitutional or statutory provision which prohibits members of the legislature from occupying any other office, trust, or employment. See Special Assembly Interim Committee v. Southard, 13 Cal. (2d) 497, 90 P. (2d) 304.

The authorities are in accord that, by statute, a legislative committee may be created and authorized to sit during the interim between sessions for any proper purpose, and empowered to take testimony, compel the attendance of wit nesses, punish for contempt, and be directed to report its findings to the next legislature.

“No one would doubt the validity of a statute to the effect that whenever a legislative committee has been appointed in one year, its members, if re-elected, shall continue to constitute the committee during the next year, unless and until their membership is otherwise revoked. What the Legislature may say in a statute applicable to legislative committees generally, it may say with the same validity in defining the life and the functions of a particular committee: Far from departing thereby from the principles and precedents of parliamentary procedure, it is following the very method to which consecrating usage has affixed the stamp of regularity.” People ex rel. Hastings v. Hofstadter, 258 N. Y. 425, 433, 180 N. E. 106, 79 A. L. R. 1208.

See, also, 49 Am. Jur. 258, 259.

“Whenever the legislature has authority to enact laws, it has corresponding authority to make necessary investigations for the ascertainment of such facts as are a necessary predicate for the enactment of the law, and to this end may appoint investigating committees. This is the principal purpose and function of legislative committees. A legislative committee may be created to investigate the management of various state institutions and departments of the state in order to ascertain facts as a basis for possible remedial legislation, or to investigate the workings of a primary election law for the selection of party candidates for United States Senator, with a view to further legislation. The powers of such committees need not, however, be restricted to investigations upon matters pertinent only to legislation; legislative committees may be created to investigate into any subject legitimately within the scope of the powers, functions, and duties of the legislature, and to secure information necessary to the proper discharge thereof.” 49 Am. Jur. 260.

Other than State ex rel. French v. Clausen, 107 Wash. 667, 182 Pac. 610, which is distinguishable from the case at bar, we find no authority that members of the legislature which by statute created a legislative council or interim committee, could not serve upon such council or committee. In other words, membership on the council does not constitute a civil office created by the legislature.

In State ex rel. McIntosh v. Hutchinson, 187 Wash. 61, 59 P. (2d) 1117, 105 A. L. R. 1234, we quoted with approval from State ex rel. Barney v. Hawkins, 79 Mont. 506, 257 Pac. 411, 53 A. L. R. 583, as follows:

“After an exhaustive examination of the authorities, we hold that five elements are indispensable in any position of public employment, in order to make it a public office of a civil nature: (1) It must be created by the Constitution or by the legislature or created by a municipality or other body through authority conferred by the legislature; (2) it must possess a delegation of a portion of the sovereign power of government, to be exercised for the benefit of the public; (3) the powers conferred and the duties to be discharged must be defined, directly or impliedly, by the legislature or through legislative authority; (4) the duties must be performed independently and without control of a superior power, other than the law, unless they be those of an inferior or subordinate office, created or authorized by the legislature and by it placed under the general control of a superior officer or body; (5) it must have some permanency and continuity and not be only temporary or occasional.”

If any of the five elements recited in State ex rel. Barney v. Hawkins, supra, as indispensable in any position of public employment is absent, such employment is not a public office of a civil nature. All five elements must be present. In the case at bar, the first element is present, but the second element is lacking. It is not necessary to discuss the question whether the other three elements are present. Unless there was delegated to the members of the legislative council some of the sovereign functions of government to be exercised for the benefit of the public, the position now held by each of the members of the legislative council is not a civil office. Mechem on Public Officers, § 4, p. 5. The council members will not legislate, execute, or administer laws enacted by them. The only power of the legislative council is to collect information and report as to the facts it finds to the next legislature and to make its reports public. Since it is not engaged in making laws, executing them, or administering them,- no member of the council is a holder of a civil office. See State ex rel. Brown v. Blew, 20 Wn. (2d) 47, 145 P. (2d) 554, and 46 C. J. 925.

By chapter 184, p. 566, Laws of 1919, the legislature provided for appointment by the governor of a commission of five citizens, one of whom was to be a member of the state Senate and one a member of the House of Representatives, to be known as the “Industrial Code Commission.” The duty of the commission was defined to be that of investigation of the evils existing in industrial life and to prepare and present to the legislature at its next regular session proposed legislation upon all such subjects, including an act for the prevention of strikes and the orderly settlement of industrial disputes. We held in State ex rel. French v. Clausen, 107 Wash. 667, 182 Pac. 610, that the provision in the industrial code commission statute that two of the five members of the commission must be members of the legislature, was invalid as violative of Art. II, § 13, of the state constitution, which prohibits the appointment or election of any member of the legislature, during the time for which he is elected, to any civil office created during his term. The case is distinguishable from the case at bar. The commission was in no sense an interim committee, as is the legislative council in the case at bar. It was independent of the legislature, and the personnel of that commission was appointed by the governor.

The statute (Laws of 1947, chapter 36) which created the legislative council, does no more than make available new machinery and new methods by which the members of the committee may keep themselves informed upon specific problems; and that statute does not impose upon the members of the council who are members of the legislature, any new office or trust. The additional duties which are imposed upon the legislative members of the council are no different in purpose and kind from those which they already perform.

In principle, Parker v. Riley, 18 Cal. (2d) 83, 113 P. (2d) 873, 134 A. L. R. 1405, sustains the position of relator in the case at bar. The California legislature created a commission on interstate co-operation and charged it with the duty of furthering the participation of the state in the council of state governments proposed by the state of California and other governments, of organizing and maintaining machinery for those purposes, of establishing committees and advisory boards and employing such persons as were necessary to carry out those duties; of reporting its proposals to the legislature within fifteen days after the convening of each regular legislative session and at such other times as it considered appropriate. The statute created a senate committee and an assembly committee on interstate co-operation, which were to be chosen as other committees of each branch of the legislature, and to function during the interim between sessions as well as during the regular sessions. The membership of the commission was made up of five members of the senate committee, five members of the assembly committee, and five citizens to be appointed by the governor. The members appointed by the governor were to hold office at his pleasure, and the members of the legislature were to hold office as long as they remained members of the committees of each house. The comptroller of the state of California refused to honor vouchers for expenses of members of the commission, and an original petition for a writ of mandate to compel the issuance of the warrants was filed in the supreme court of California, which granted the writ. The court said:

“In so far as the statute deals with the creation of interim committees in each of the houses of the legislature, no successful attack can be made upon it. Indeed, the legislative committees created under this statute appear to satisfy fully the requirements enunciated in the opinions of this court in Special Assembly Interim Committee v. Southard, 13 Cal. (2d) 497 [90 Pac. (2d) 304], and Swing v. Riley, 13 Cal. (2d) 513 [90 Pac. (2d) 313].

“The most serious challenge to the constitutionality of this legislation is advanced under section 19 of article IV of the California Constitution. That section since 1916 has provided: ‘No senator or member of assembly shall, during the term for which he shall have been elected, hold or accept any office, trust or employment under this state; provided, that this provision shall not apply to any office filled by election by the people.’ Respondent contends that membership upon the California Commission on Interstate Cooperation constitutes an ‘office, trust, or employment’ under the constitutional provision, and that members of the legislature cannot lawfully be made members of such a commission. Prior to 1916 the comparable provision was far less stringent and only prohibited the acceptance by a legislator of ‘any civil office of profit’. which was created or the emoluments of which had been increased during his term of office as a legislator. Constitutional provisions in many other states have retained the less stringent form prohibiting a ‘civil appointment’ (Illinois Const., art. IV, sec. 15; New York Const., art. Ill, sec. 7) or a ‘civil office’ (Colorado Const., art. V, sec. 8; Montana Const., art. 5, sec. 7; Nevada Const., art. 4, sec. 8). Such constitutional provisions have been interpreted to permit the acceptance by a legislator during his term of office of positions which do not amount to an ‘office’ but are mere ‘employment’. (Hudson v. Annear, 101 Colo. 551 [75 Pac. (2d) 587]; State Tax Com. v. Harrington, 126 Md. 157 [94 Atl. 537]; State ex rel. Barney v. Hawkins, 79 Mont. 506 [257 Pac. 411, 53 A. L. R. 583]; State ex rel. Kendall v. Cole, 38 Nev. 215 [148 Pac. 551].) A similar conclusion was reached in California under the older constitutional provision. (Curtin v. State, 61 Cal. App. 377, 390 [214 Pac. 1030].) After the amendment of this provision in 1916, however, it was held that such positions as that of a deputy district attorney or that of auditor of the State Board of Prison Directors constitute the kind of ‘office, trust, or employment’ to which a legislator may not be appointed. (Satterwhite v. Garrison, 34 Cal. App. 734 [168 Pac. 1053]; Chenoweth v. Chambers, 33 Cal. App. 104 [164 Pac. 428].) The amended provision has been said to be far more sweeping than its predecessor and to have been designed to prevent the acquiring by members of the legislature of positions on the state payroll which might prevent their maintaining a desirable independence of mind. (Chenoweth v. Chambers, supra, p. 106.) It has been indicated, however, that compensation or emolument may not be a necessary element where the position involved falls within the more important classification of an ‘office’. (See Patton v. Board of Health, 127 Cal. 388, 395 [59 Pac. 702, 78 Am. St. Rep. 66].) [2] It is clear, therefore, that the purpose of the constitutional provision here involved is to prevent the acceptance by a legislator of any position under the state, whether an office or merely employment, which creates the opportunity for private aggrandizement, pecuniary in nature or otherwise. (See State ex rel. Barney v. Hawkins, 79 Mont. 506, 526 [257 Pac. 411, 53 A. L. R. 583]; Gillespie v. Barrett, 368 Ill. 612, 617 [15 N. E. (2d) 513].)

“The sweeping terms of the California constitutional provision thus prevent the appointment of a member of the legislature to any other position of trust or responsibility under the state. It may be noted, however, that the positions created by the statute here attacked lack certain elements usually associated with an ‘office’ or ‘trust’. Thus, it is generally said that an office or trust requires the vesting in an individual of a portion of the sovereign powers of the state. (Patton v. Board of Health, supra, pp. 394, 398; Curtin v. State, supra, p. 390; Leymel v. Johnson, 105 Cal. App. 694, 699 [288 Pac. 858]; Couts v. County of San Diego, 139 Cal. App. 706, 712 [34 Pac. (2d) 812]; State ex rel. Barney v. Hawkins, supra, p. 520; State ex rel. Kendall v. Cole, supra; 53 A. L. R. 595, 602.) The positions here created do not measure up to so high a standard. They involve merely the interchange of information, the assembling of data, and the formulation of proposals to be placed before the legislature. Such tasks do not require the exercise of a part of the sovereign power of the state. It may also be doubted whether the positions here conferred constitute an ‘employment’ by the state since no compensation is provided for the members of the commission. Yet, while distinctions might thus be drawn to show that membership on the commission is not within the scope of the constitutional prohibition, we prefer to place our decision on other more fundamental grounds.

“ [3] Assuming, but not deciding, that the positions created under this statute amount to an ‘office, trust, or employment’ under the state, we do not think the trust thus imposed upon selected members of the legislature is in violation of the constitutional prohibition. The constitutional provision clearly implies that the prohibition is directed at the conferring of any other office, trust, or employment upon a member of the legislature. A member of the legislature is already an officer holding a position of trust under the state government. Where a statute merely makes available new machinery and new methods by which particular legislators may keep themselves informed upon specific problems, it cannot be said to have imposed upon them any new office or trust. The additional duties which rest upon the legislative members of the commission are identical in purpose and kind with those which they already perform. As was said in People v. Tremaine, 252 N. Y. 27, 41 [168 N. E. 817], ‘The duties of members of the Legislature may be enlarged without making a civil appointment or creating a new office, so long as the duties are such as may be properly attached to the legislative office. . . . ’We hold, therefore, that the statute here attacked did not contemplate the conferring of any new office, trust, or employment upon the legislative members of this commission. (Special Assembly Interim Com. v. Southard, supra, p. 499; Mulnix v. Elliott, 62 Colo. 46 [156 Pac. 216]; Terrell v. King, 118 Tex. 237, 248 [14 S. W. (2d) 786].)

“[lb] It must not be assumed, however, that legislative activities may be expanded indefinitely through the creation of separate agencies responsible primarily to the legislature. This sort of expansion would soon lead to a legislative usurpation of power incompatible with the proper exercise of its lawmaking function. The Constitution forbids any such assumption of duties by the legislative branch of government, and a statute conferring a nonlegislative office or trust upon members of the legislature would be clearly unconstitutional. But under the particular facts set forth, where the responsibilities imposed are merely those of gathering information and making recommendations, we think the duties must be considered incidental to the lawmaking function. The creation of a separate commission in this instance involved merely the use of new machinery in carrying out a trust already reposed in the members of the legislature. Under such circumstances the statute does not fall within the prohibition of the constitutional provision relied upon,' and the contentions of respondent in this regard cannot be sustained.”

Brown v. Brancato, 321 Pa. 54, 184 Atl. 89, and In re Hague, 105 N. J. Eq. 134, 147 Atl. 220, are not in point. They hold that the legislature may not by resolution create a committee with power to sit after adjournment. As stated above, we find no authority contrary to the rule that interim committees to investigate and report to the next legislature may be appointed pursuant to a statute duly adopted, and that the service of a legislator on such a committee would not be violative of § 13 of Art. II of the state constitution, prohibiting members of the legislature from occupying a civil office which was created or the emoluments of which were increased during the term for which such member of the legislature was elected. See Special Assembly Interim Committee v. Southard, 13 Cal. (2d) 497, 90 P. (2d) 304.

No other questions of substantial merit are raised.

Let the writ issue.

Beals, Steinert, Robinson, and Simpson, JJ., concur.

Jeffers, J., concurs in the result.