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AGO 1962 No. 95 - February 08, 1962
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John J. O'Connell | 1957-1968 | Attorney General of Washington


OFFICES AND OFFICERS ‑- STATE ‑- GOVERNOR ‑- EFFECT OF VETO OF SALARY INCREASE ON ELIGIBILITY OF LEGISLATORS TO RUN FOR OFFICE OF GOVERNOR IN 1964.

Under Article II, § 13, of the State Constitution, no member of the legislature, during the term for which he is elected, may be elected to any office the emoluments of which have been increased during his term; therefore, any state senator elected in November, 1960, (for a four-year term expiring in January, 1965) who was a member of the 1961 legislature which increased the emoluments of the office of the governor (by overriding the governor's veto of chapter 316, Laws of 1959) is not eligible to run for that office in 1964.

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                                                                 February 8, 1962

Honorable Thomas L. Copeland
State Representative, 11th District
Route 3
Walla Walla, Washington

                                                                                                                Cite as:  AGO 61-62 No. 95

Dear Sir:

            By letter previously acknowledged you requested an opinion of this office on a question which we paraphrase as follows:

            What effect, if any, did the action of the 1961 legislature in overriding the item veto of the governor's salary increase contained in chapter 316, Laws of 1959 (House Bill No. 698) have upon the eligibility of the members of the house of representatives and senate of the 1961 legislature to qualify as a candidate for and be elected to the office of governor in future years?

            We answer your question in the manner set forth in our analysis.

                                                                     ANALYSIS

            The facts giving rise to your request for our opinion may be summarized as follows: During the 1959 session of our legislature, chapter 316, Laws of 1959 (H.B. 698) was passed increasing the salaries of the various state elected officials, including that of the governor.  When the act was presented to the governor for approval, he vetoed the salary increase of his office while approving the remaining provisions of the act.  See chapter 316, Laws of 1959, p. 1513, for veto message.

             [[Orig. Op. Page 2]]

            The validity of this "item" veto was upheld by the court in State ex rel. Ruoff v. Rosellini, 55 Wn. (2d) 554, 348 P. (2d) 971 (1960).  At its following session which commenced on January 9, 1961, (see RCW 44.04.011) the legislature on January 10, 1961, passed chapter 5, Laws of 1961, by more than a two-thirds vote, thus overriding the governor's veto.  Hence when the governor commenced his term on January 11, 1961, (see RCW 43.01.010) he received (by virtue of the action of the 1961 legislature) the increase provided for his office.  Because of the increase in the compensation for the office of governor by the 1961 legislature, you desire to know whether Article II, § 13, of the Washington State Constitution will prevent members of the 1961 session from running for governor in future years.  Article II, § 13, of the State Constitution reads as follows:

            "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."

            In discussing the purpose of Article II, § 13, our court in the recent case ofState ex rel. Carroll v. Munro, 52 Wn. (2d) 522, 541, 542, 327 P. (2d) 729 (1958), stated as follows:

            ". . . The provision is not free from ambiguity when it is considered that it was designed to afford some assurance that legislators, in voting on matters of this sort, would not be influenced by their own aspirations to the office in question, and that no aspiration of this kind can be served where the increased emolument will not be available to the legislator during the term for which he is elected or appointed.  Significantly,the prohibition applies only during the legislator's term in the legislature. . . ."  (Emphasis supplied.)

            We believe the holding of our court in the case of State ex rel. Pennick v. Hall, 26 Wn. (2d) 172, 176, 177, 173 P. (2d) 153 (1946), in which Article II, § 13, supra, was interpreted, is controlling in this instance. In that case Blanche Pennick was elected in 1944 for the twenty-ninth session of the state legislature.  Her term of office which commenced January 8, 1945, expired the second Monday in January, 1947.  During the 1945 session, the legislature increased the annual salary of county officers.  The statute became  [[Orig. Op. Page 3]] effective June 6, 1945.  Thereafter on July 6, 1946, Miss Pennick became the successful nominee of her political party for the office of auditor, Grays Harbor County.  An action was brought, based upon Article II, § 13, supra, to prohibit the county election board from certifying her name on the official ballot.  The judgment of the trial court granting the writ of prohibition was affirmed by the supreme court.  Specifically the court stated:

            "InState ex rel. Reynolds v. Howell, 70 Wash. 467, 126 Pac. 954, we construed Art. IV, § 15, of the state constitution, which reads as follows:

            "'The judges of the supreme court and the judges of the superior court shall be ineligible to any other office or public employment than a judicial office or employment during the term for which they shall have been elected.'

            "In the case cited, we sustained the contention of the relator that the constitutional provision last quoted meant that the candidate for governor, whose judicial term of office would expire the second Monday of January, 1913, was not eligible to be elected to any office other than a judicial one during his term, although the term of the office of governor commenced two days subsequent to the date of the expiration of the candidate's judicial term.

            "In that case, we did not agree with the candidate's contention that the ineligibility extended only to holding another office during his term and that, as his term of judge would expire a day or more prior to the beginning of the governor's term, he was eligible for election to the governorship.

            "The candidate in the case at bar makes a similar argument.  She contends that, as the county auditor's term commences contemporaneous with expiration of her term of office as a member of the legislature, she is not ineligible during her term as a member of the legislature for election to the office of county auditor.

            "In principle, the case cited and the case at bar are indistinguishable.  In each the question presented is one of eligibility to office.  It  [[Orig. Op. Page 4]] is prerequisite to eligibility for election in the sense of becoming a candidate and participating in the election process that a candidate be, at that time, eligible to hold the office."  (Double emphasis ours.)

            In other words, the court in the Pennick case, supra, held that a legislator, during his term of office, is not eligible to become a candidate for an office, the emoluments of which were increased by the legislature of which he was a member.

            ThePennick case,supra, was distinguished by our court in theMunro case,supra, but it is still the law of the state of Washington and, as previously stated, is determinative of the question presented.

            The next regular election for governor in this state will be held in November, 1964, with the person elected taking office in 1965.

            Based upon what we have concluded hereinbefore, i.e., that a member of the legislature is ineligible only during the term for which he was elected from being a candidate for office, the emoluments of which were increased during his term, it is the opinion of this office that:

            (1)All members of the 1961 house of representatives will be eligible to run for governor in 1964, since their two-year terms will expire in January of 1963.  See Article II, § 5, Washington State Constitution.

            (2) Pursuant to Article II, § 6, of the State Constitution, one‑half of the state senators are elected every two years.  Accordingly, state senators who were elected in 1958 and whose terms expire in January of 1963,will be eligible to run for the office of governor in 1964.  However, those state senators who were elected to office in 1960 and whose terms will expire in January of 1965,will be ineligible to run for the office of governor in 1964.

            The conclusions stated herein are in accord with the following opinions issued by this office: December 28, 1937, to Senator T. C. Bloomer; March 20, 1946, to Representative Francis Pearson [[1945-46 OAG 681]]; March 20, 1946, to Edward T. Chambers [[1945-46 OAG 679]]; and April 19, 1949, to the State Auditor [[Opinion No. 49-51-16]].  However, as we pointed out in AGO 57-58 No. 75, issued on June 4, 1957, to the Director of Licenses, upon the expiration of the present four-year terms of senators elected in 1960, Article II,  [[Orig. Op. Page 5]] § 13, will not prohibit those senators from running for or being elected governor.

            We trust the foregoing will be of assistance to you.

Very truly yours,

JOHN J. O'CONNELL
Attorney General

JANE DOWDLE SMITH
Assistant Attorney General

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