AGO 1965 No. 2 - Jan 12 1965
OFFICES AND OFFICERS ‑- LEGISLATURE ‑- SALARIES OF MEMBERS ‑- INCREASE EFFECTIVE FOR NEXT TERM OF OFFICE ‑- ELIGIBILITY TO RUN FOR RE‑ELECTION [[REELECTION]].
If the legislature at its present session were to enact a law increasing the salaries of legislators effective for the terms commencing in January, 1967, the passage of such a law would not render the members of the legislature ineligible to seek re‑election [[reelection]].
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January 12, 1965
Honorable John T. McCutcheon
Senator, 29th District
Cite as: AGO 65-66 No. 2
By letter previously acknowledged you have asked whether the present legislature may increase the compensation of legislators effective upon their re‑election [[reelection]]to office without disqualifying its present members from being candidates for re‑election [[reelection]].
In our opinion it may.
At the time our constitution was framed in 1889, the salary of the members of the legislature was fixed by Article II, § 23, of the Washington State Constitution, which provided:
"Each member of the legislature shall receive for his services five dollars for each day's attendance during the session, and ten cents for every mile he shall travel in going to and returning from the place of meeting of the legislature, on the most usual route."1/
[[Orig. Op. Page 2]]
The salaries of legislators remained fixed by the foregoing provision(State ex rel. Banker v. Clausen, 142 Wash. 450, 253 Pac. 805 (1927)) until legislation was enacted pursuant to Amendment 20, approved by the people in November, 1948. Amendment 20 reads as follows:
"All elected state officials shall each severally receive such compensation as the legislature may direct. The compensation of any state officer shall not be increased or diminished during his term of office, except that the legislature, at its thirty-first regular session, may increase or diminish the compensation of all state officers whose terms exist on the Thursday after the second Monday in January, 1949.
"The provisions of sections 14, 16, 17, 19, 20, 21, and 22 of Article III and section 23 of Article II in so far as they are inconsistent herewith, are hereby repealed."
The foregoing amendment permits the legislature to establish the compensation of its members. Furthermore it permitted the thirty-first legislature (the 1949 session) to make an immediate increase effective during the existing terms of office of the members of that session. The legislature exercised the authority so granted and enacted chapter 48, Laws of 1949, which increased the salaries of all elected state officers, including legislators. The salaries of legislators were fixed at $1,200.00 per year. They have not been increased since that time.
Your inquiry calls for an interpretation of Article II, § 13, of our Washington Constitution. Article II, § 13, 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."
If the office of legislator is a "civil office" within the [[Orig. Op. Page 3]] meaning of this provision, increased compensation for state senators and representatives will disqualify the candidacy of every present member of the legislature who choses [[chooses]]to be a candidate for re‑election [[reelection]]. State ex rel. Pennick v. Hall, 26 Wn. (2d) 172, 173 P. (2d) 153 (1946).
We have concluded however that the office of state senator or representative isnot a "civil office" within the meaning of this provision.
Our reason for this conclusion is that the office of senator and representative could not have been a "civil office" within the meaning of Article II, § 13, when that section was originally placed in the constitution by the framers in 1889. This is so because these offices were created by the constitution (Article II, § 2) with fixed compensation (Article II, § 23, supra). The power to change the compensation, which the legislature now has, arises as we have previously noted from the 20th Amendment, approved by the people in 1948.
Contemporaneous construction of the 20th Amendment shows that the amendment was not intended to expand the original meaning of the term "civil office." On December 1, 1948, less than a month after passage of the 20th Amendment, this office so concluded. See the attached memorandum. During the 1949 legislative session the legislature increased the salaries of senators and representatives to their present level, yet it does not appear that anyone contended that the members of that legislature thereby disqualified themselves from becoming candidates for re‑election. In fact, many members of that legislature did become candidates for re‑election [[reelection]]and were re‑elected [[reelected]]did become candidates for re‑election and were re‑elected.
There is no decision of our state supreme court directly in point. However, all authority on this question from other jurisdictions supports the contemporaneous construction given to the 20th Amendment. State ex rel. Zimmerman v. Dammann, 201 Wis. 84, 228 N.W. 593 (1930); State ex rel. Grigsby v. Ostroot, 75 S.D. 319, 64 N.W. 2d 62 (1954). These decisions are most persuasive because each court independently arrived at its conclusion by following the same reasoning we have outlined above. Furthermore, there is no decision from any other jurisdiction reaching a different conclusion.
We note that even if the original constitutional provisions [[Orig. Op. Page 4]] did not fix the compensation for senators and representatives, these offices would not be deemed "civil offices" within the meaning of Article II, § 13. State ex rel. Olson v. Scott, 105 Minn. 573, 117 N.W. 1044 (1908).
We conclude that the legislature at its present session may enact legislation raising the salaries of legislators effective upon the commencement of their new terms without disqualifying its members as candidates for re‑election [[reelection]]. It would be absurd to conclude that the people, in 1948, when they granted the legislature the right to fix their own salaries, intended that the exercise of this right would result in the disqualification of the entire membership as candidates for reelection.
We trust that the foregoing information will be of assistance.
Very truly yours,
JOHN J. O'CONNELL
J. RICHARD DUGGAN
Assistant Attorney General
*** FOOTNOTES ***
1/A motion allowing the legislature to fix the salary of its members failed during the constitutional convention. See, The Journal of the Washington State Constitutional Convention. p. 537.