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AGO 1963 No. 50 - August 26, 1963
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John J. O'Connell | 1957-1968 | Attorney General of Washington


Article II, § 13, of the state constitution does not bar a member of the 1963 legislature from being a candidate for election to a city office the term of which was extended by § 4, chapter 200, Laws of 1963, from three to four years.

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                                                                 August 26, 1963

Honorable Frances Haddon Morgan
State Senator, 23rd District
948 Lower Oyster Bay Road
Bremerton, Washington

                                                                                                                Cite as:  AGO 63-64 No. 50

Dear Senator Morgan:

            You have asked whether Article II, § 13, of our state constitution bars a member of the 1963 legislature from being a candidate for election to a city office, the term of which was extended by § 4, chapter 200, Laws of 1963, from three to four years.

            In our opinion it does not.


            Article II, § 13, of our constitution provides that:

            "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."

            As we understand you inquiry, you question is twofold: Does the extension of the term of the city offices in question constitute the "creation" of an office?  Does the extension of the term constitute "increased" "emoluments"?

            Provisions similar to Article II, § 13, of our constitution are found in the United States constitution (Art. I, § 7, cl. 2) and in the constitutions of thirty of the states (Index Digest of State Constitutions  [[Orig. Op. Page 2]] (2d ed. 1959), p. 664-665).  Their purpose is:

            ". . . to take away, as far as possible, any improper bias in the vote of the representative, and to secure . . . some solemn pledge of . . . disinterestedness. . . ." (II Story, Commentaries on the Constitution of the United States (1833), p. 331.)

            State ex rel. Carroll v. Munro, 52 Wn.2d 522, 541, 327 P.2d 729 (1958);State ex rel. Pennick v. Hall, 26 Wn.2d 172, 176, 173 P.2d 153 (1946); Annotation:  118 A.L.R. 182 (1938).

            Nonetheless it is obvious that the disqualification is not coextensive with the supposed mischief (Id., at p. 331.) The disqualification, for example, exists only during the term for which the legislator was elected.  State ex rel. Carroll v. Munro, supra; State ex rel. Todd v. Reeves, 196 Wash. 145, 82 P.2d 173 (1938).

            Laudable as the provision may be in its ultimate purpose, there is considerable wisdom, suggests Mr. Justice Story, in leaving the provision as it is without extending it further.  (Story,op. cit., pp. 331-332.) For one thing, he says, it is not easy to shut out all or even many of the avenues of undue or corrupt influence upon the human mind; free government must rest upon the principles of responsibility through election, personal character, and "purity of principle;" free government presupposes the existence of these qualities.  Furthermore:

            ". . . It might well be deemed harsh 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 necessary offices, lest they should become victims of their high discharge of duty.  The chances of receiving an appointment to a new office 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. . . ." (Story,supra, p. 332.)

            For a modern affirmation of this viewpoint, see State ex rel. West  [[Orig. Op. Page 3]] v. Gray (Fla.), 74 So.2d 114 (1954).

            Mr. Justice Story's criticism of provisions such as our Article II, § 13, has not been lost on the courts.  The courts consequently give such provisions a narrow construction; all doubts are resolved in favor of eligibility for office.  State ex rel. Carroll v. Munro, supra; State ex rel. West v. Gray, supra; cf.State ex rel. Todd v. Reeves, supra.  By so doing, the courts are simply construing the constitutional provision in accordance with a general public policy favoring broad eligibility for public office.  State ex rel. Weston v. Schragg, 158 Wash. 74, 291 Pac. 321 (1930); Ervin v. Collins (Fla.), 85 So.2d 852, 59 A.L.R.2d 706 (1956).

            We now turn to the specific problems your question raises.

            We are satisfied that the mere extending of a term of office does not constitute the "creation" of an office.

            Additional powers may be granted to a public officer without creating a new office.  State v. Coombs, 32 Me. 529 (1851).  A new office is not created where a statute remodels the functions and duties of an existing office.  People ex rel. McCoppin v. Burns, 53 Cal. 660 (1879).  Likewise, in our opinion, the term of the office can be extended without creating a new office.  The common principle in each of these situations is this: to "create" is to bring into being or cause to exist.  Westernport v. Green, 144 Md. 85, 124 Atl. 403 (1923); State v. Gooding, 22 Ida. 128, 124 Pac. 791 (1912).  Therefore, where an existing office is subject to legislation of this type, no new office is created.  Extending the term can be likened to legislation imposing additional duties that are merely incidental, collateral, or germane to prior duties.  Such legislation does not create a new office for which additional compensation can be paid.  SeeState ex rel. Livingston v. Ayer, 23 Wn.2d 578, 161 P.2d 429 (1945);State ex rel. Younger v. Clausen, 111 Wash. 241, 190 Pac. 324 (1920);State ex rel. Bagley v. Clausen, 111 Wash. 254, 190 Pac. 329 (1920).

            We are also satisfied that the extension of a term of office does not constitute an increase in the emoluments of such office.

            The "emoluments" to which our constitutional provision is directed are the profits, compensation, fees, or salary of the office constituting actual pecuniary gain; the term does not include an "imponderable and contingent benefit."  State ex rel. Todd v. Reeves, supra.

            The adding of an extra year to an existing term may be considered a benefit by an office seeker who has fewer elections to face.  Nevertheless, this benefit clearly falls in the "imponderable and contingent" class and is therefore not an increased emolument.  We further  [[Orig. Op. Page 4]] deem it of no consequence that the compensation to be received by the office holder over a four year term will exceed that to be received over a three year term.  In either case, the compensation received for any one year is the same as for any other year.  This is all the constitutional provision requires.  Should the provision be interpreted in any other way, it would be a reduction in salary.

            We trust that the foregoing opinion will be of assistance to you.

Very truly yours,

Attorney General

Assistant Attorney General

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