AGO 1953 No. 16 - Apr 23 1953
CIVIL OFFICE ‑- STATE WELFARE MEDICAL CARE COMMITTEE ‑- LEGISLATOR AS COMMITTEE MEMBER ‑- CONSTITUTIONAL LAW.
Membership in the state welfare medical care committee is not a "civil office" within the purview of Constitution, Article II, section 13. Hence, the governor may legally appoint a member of the 33rd legislature to serve on such committee.
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April 23, 1953
Arthur B. Langlie
Governor of the State of Washington
Olympia, Washington Cite as: AGO 53-55 No. 16
Receipt of your request of April 15, 1953, for an opinion from this office is hereby acknowledged.
The question is whether or not you may legally appoint a member of the thirty-third legislature to the state welfare medical care committee.
Our conclusion is that you may.
The state welfare medical care committee was established by Senate Bill No. 10 of the Extraordinary Session of 1953. The question is whether or not you may legally appoint a member of the thirty-third legislature, which enacted this measure, to this committee, in view of the prohibition set forth in Constitution, Article II, section 13, which provides 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, * * * during the term for which he was elected."
[[Orig. Op. Page 2]]
If the committee in question is a "civil office" within the meaning of the constitutional provision, the quoted section would prevent the appointment of a member of the thirty-third legislature.
There are five elements which are indispensable to a position in order to make it a civil office. They are:
1. It must be created by the Constitution or by the legislature or created by a municipality or other body through authority created 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 office or body.
5. It must have some permanency and continuity and not be only temporary or occasional.
See State ex rel. Hamblen v. Yelle, 29 Wn. (2d) 68, 76; State ex rel. McIntosh v. Hutchinson, 187 Wash. 61;State ex rel. Barney v. Hawkins, 79 Mont. 506, 257 Pac. 411, 53 A.L.R. 583.
If any of the five elements set forth above is absent, the position is not a public office of a civil nature.
Elements 1, 3 and 5 are clearly present in Senate Bill No. 10. Elements number 2 and 4 must be considered more carefully.
The duties of this committee are set forth in the second paragraph of section 5 of the bill as follows:
"The committee shall advise and give assistance to the director of health in planning and carrying out the most efficient and economical welfare medical care program. It shall assist the director of health in preparing and presenting the biennial appropriation request to the governor and the legislature."
[[Orig. Op. Page 3]]
Does this language delegate a portion of the sovereign power of government? Are the duties to be performed independently and without control of a superior power, or, if not, has the legislature created an inferior office and placed it under the control of a superior body? We think that these questions must all be answered in the negative.
The sovereign power of the government is the power to:
1. Make laws (legislative).
2. Interpret laws (judicial).
3. Administer or carry out the laws (executive).
No legislative or judicial power has been delegated. Whether or not any executive power has been delegated depends upon whether any power has been granted this body to carry out and apply the laws on the strength of no other authority than its own, within the field set aside to it by the legislature.
A reading of the statutory language quoted above reveals that no such independent authority has been delegated to the committee. It has only two functions. One is to "advise" the director of health. Advisory authority is not an exercise of sovereign power. The other is to "give assistance" to the director in planning and carrying out the program, and to "assist" him in preparing and presenting his budget.
"Assist" or to "give assistance" means to lend aid or help another. See Webster's New International Dictionary, 2nd Edition. The words clearly indicate a legislative intent that the extent of the committee's authority was to help or aid the director of health in the exercise of those sovereign powers of government delegated to him. There is no delegation of any sovereign powers of government directly to the committee. There is no field in which it can operate independently, nor any power which it can exercise in its own right.
[[Orig. Op. Page 4]] It is our opinion that the second and fourth indispensable elements are lacking. Membership upon the committee in question is not a "civil office" within the purview of Const. Article II, section 13.
We conclude that you may legally appoint a member of the thirty-third legislature to the state welfare medical care committee.
Very truly yours,
CYRUS A. DIMMICK
Assistant Attorney General