*1 devel- that such condition infarcted spleen; result of an certifi- of the membership issuance subsequent oped cause. it arose from undetermined cate, and that case prima established proof Appellant’s facie the respondent burden was then upon for recovery. fell within medical and hospital expenses prove v. Gov Angelus provisions policy. the exclusionary 321 P. Co., (2d) 691, Ins. 51 Wn. ernment Personnel Life (1958). (2d) reversed, remanded with cause
The judgment trial. grant instructions new JJ., concur. J., Mallery, C. Hunter, Hill, Finley, 18, 1958. Petition for denied. rehearing August 34723. En Banc. June 1958.]
[No. Charles O. on the Relation Washington, Carroll, Prosecuting Attorney King County, as Respondent. Munro, Ed
Appellant, 1Reported P. in 327 *2 Smiles, and K. G. for Carroll appellant.
Charles O. & Spiller, respondent. Kelley, O’Sullivan McNair, amicus curiae. Heckendorn & have the power J. Does au- Weaver, constitution and laws of the state of thority, under fill a caused death of an incum- Washington, when the two commissioner commis- bent county unable to agree upon are a suc- sioners member? the deceased cessor to constitutionally eligible to hold respondent
Is commissioner by appointment gov- office ernor? quo commenced warranto
This is action attorney King county pursuant prosecuting statute. requests seq. the court The information 7.56.010 et RCW unlawfully (1) respondent, Munro, Mr. Ed to declare King office of commissioner holds the privileges and from the emoluments be excluded should (2) is entitled to the that Mr. John J. Lewis thereof; and office. following presented undis- questions from the arise
puted facts. county commissioner of was elected
William H. Sears King county commissioner district from the second com- general November, His term held election January Mon- 14, 1957,and extended to second menced April January, day died thus 1961. Mr. Sears King creating board of on the three-member county commissioners.
April central committee Mr. Sear’s 10, 1958,the *3 party political the names of three “in individuals submitted the the 32nd amendment to constitution accordance with Washington,” remaining of members of the county King commissioners, the re- board of with of the quest that by disagreement appoint- the board “In the event of on persons, request above named we one the the
ment of this list to the Governor of the forward State of Board to appointment.” Washington and for his selection April members of 11,1958, the two the board of ap- county met. One member the commissioners moved desig- pointment one the Lewis, J. nominees of John county by central the committee; motion failed nated by Upon a reference the commissioners, want of second. for respondent, governor appointed not who is a member predecessor political party Sears, Mr. his as the same in office. Appoint Power the Governor
A. The Mr. Munro county political committee, of party central the same proceeded theory Sears, on the that one of its as Mr. nomi- by .procedure appointment nees entitled reason of the. Washington §II, 15, set forth in as constitution —Art.. by thirty-second amendment, amended states: which may “[a] as Such vacancies occur in either house of the legislature filled any partisan county or in elective shall be office by appointment by the board of vacancy [b] Provided, occurs: person appointed vacancy That the the same fill the be must legislative political party district the same as and legislator of been and shall be vacated, the one whose has office by persons three shall who be nominated ap- person party, central so committee pointed shall hold officeuntil successor is elected at the his general qualified: [c] election, Pro- next and shall have occurring vacancy vided, That in case of office joint filled vacancy joint representative, senator shall or three from fist of nominees selected the state cen- by appointment by joint tral committee, action composing boards of counties joint joint per- representative the son legislative district, the senatorial appointed must .be from the same political party district and of the same as the legislator vacated, whose office has been and in case a ma- jority agree upon of said commissioners do not sixty days within after the occurs, governor list thirty days the the within thereafter, shall and from provided appoint person herein, of nominees legislative shall who be from same distriét political party legislator same as the whose has been office (Italics ours.) (Sections vacated.” us lettered for ref- erence.) respondent thirty-second with We the' supra, apply amendment, does not to the factual situation of purport instant case. did to act under it. *4 independent (designated
In so far as the clause “a”, supra) provides partisan- county that in vacancies elective by appointment by officesshall filled county be the board of nothing powers commissioners, it adds of the com- that is not XI, missioners contained in Art. 6, infra, of the subject state The provisos constitution. matter of two the (designated supra) “c”, “b” and of the amendment is not subject independent
as as the matter of broad clause. provisos only apply- to vacancies in the office of state legislators (senators representatives). They delineate legis- appointed that to fill a in the individual these political legis- party lative must be of the same offices as the lator officehas be three whose been vacated and shall one of persons by county nominated central committee of that majority county party. If commissioners does not a sixty days, gov- within then the on may appointment, make the accordance ernor in with the provided. amendment, the list terms of from of nominees county Although, sense, in a restricted commissioner “legislator,” designation designated might such is not parlance political accepted generally in one used jurisdiction. “legislator” is cer- in this term science county descriptive prosecutor, tainly of the office of not “partisan county treasurer, auditor, or who also hold clerk, In none of them is from addition, offices. elected elective” (commissioners “legislative district” are nominated districts) county unless entire commissioner such, a cannot conclusion we reach for it as considered unambiguous change meaning clear and would provisos. necessarily controlling, Although note we people thirty-second amendment was submitted to the “Filling legislature.” in state vacancies title the ballot under (designated independent amendment clause of the Since general, provisions only supra) restates, of Art. “a”, appropriate. title was .§ the ballot XI, .6, infra, thirty- § 15, as II, amended conclude We application constitution, has no amendment second hence, John case; instant Mr. J. Lewis has to the facts right to the office of nor commissioner claim neither county. King provides: Washington XI, 6, constitution —Art. in each shall “The board occurring any county, township, pre- all vacancies or,ipad:' appointment, such office of cinct and district appointed hold office till the next shall thus officers
527 general and election, and until their successors are elected statutory- (See qualified.” is 36.16.110, the RCW constitution.) counterpart of this section of the adopted original provision of our
This constitution following application' cases illustrate the in 1889. The passed prior to the this constitutional statutes adoption the constitution.
(1) problem presented in first State ex rel. was (1892). Moody 864 Cronin, 398, 5 Wash. 31 Pac. At that (Code § time, 1881, 1696; Code, 1 308 the statute Hill’s (1891)), provided justice that vacancies in the office peace by should be filled election. This court held “certainly self-executing §XI, 6, of the constitution was prevail”; hence, the and must statute was superseded correctly vacancy appointment filled county pro- board of commissioners in accordance ¡with visions of the constitution.
(2) Whitney, ex rel. McMartin v. 377, Wash. (1894). prose- A Pac. 473 occurred in the office of cuting attorney May county. of Snohomish 1893, appointed respondent board of to the day, governor appointed office. appellant. On the same governor purported to make the under the authority p. 1885, 15, of Laws of This court sustained respondent’s right office, § XI, 6, because Art. of the superseded governor’s statutory state constitution au- thority appoint. Moody
We find that the rationale of the and McMartin developed cases was followed when conflict between Art. §XI, 6, of the state passed by constitution statute adoption of the constitution. after legislature passed
The 1893 chapter of Laws p. provided: § It1. “Whenever occurs in a board of commis- regular
sioners. board of . then meeting . . at first thereafter, judge superior commissioners and the court appoint qualified shall . some elector ” vacancy: (Italics ours.) . . Ballinger’s pub- appears § 327, This Code, section as lished in 1897. It is of interest to note that the codifier stated: XI., “This would seem to be in conflict with Art. section judge superior requiring
§ 6, Const., as cases.” court act such *6 prophetic. The identical codifier’s comment was
The
Pendergast
presented
question
ex
Ful-
in State
rel.
v.
was
(1905).
271,
37
A ap- county. Okanogan The two members of vacancy respondent pointed to fill the notice to without judge superior the court of Oka- with consultation county. appointment nogan Quaere: the null and Was void pursuant made to the statute? because it was'not purported was valid. The statute that The powers judge superior appointive delegate of the it in conflict unconstitutional, held because was court § of the constitution. The court said: XI, 6, with Art. requirement “Respondent Code, Bal. contends provided judge superior whereby § it is 327, county appoint- commissioners, shall act with court vacancy county ing person to fill a on the board of com- § 6, therefore, 11, and, of said art. missioners, is violation void. We think this contention is and unconstitutional question no correct, that a be sustained. There is but and should county officer, is and that under the commissioner remaining have § 11, said art. members of county authority ap- board of full any point person on board, a suitable granted by authority Code, 346, Bal. is also that such Whitney, McMartin State ex rel. mentioned. above 473.” 377, 37 Pac. Wash. supra, Pendergast case, has never been overruled; jurisdiction. of this the law
is still brings the facts of instant case. If re- us to This spondent’s appointment to the board of commis- validity depend upon valid, must is statute sioners its §XI, 6, of the constitution that Art. author- in conflict with appoint governor him. izes (c), p. chapter RCW [c/. Laws (3)] provides: 36.32.070 [(1)] “(3) [(c)] [shall be] is one va- Whenever there [of
cancy commissioner in the office [ap- remaining commissioners shall state], in the the two vacancy: should] point to] [Provided, That fill the If agree upon [(2)] a selection commissioners fail to [(5)] days day expiration of five from the after the appoint [then] shall occurred, (Bracketed ap- [remaining] commissioner.” words third original pear act are from RCW 36.32- but omitted codifier.) supplied Italicized are .070. words supra, quoted § 6, constitution, XI, requires unambiguous. interpretation. no It clear and legally consti commissioners” means a “board of days, the commis tuted hoard. Since territorial board of composed is, statute, each of “three sioners of qualified electors”
“ . . quorum . two of said board of commissioners shall consti- [cf. tute a to do business.” RCW 36.32.010 Code § 2663]. *7 county Thus, a of commissioners with one board va- cancy legally body capable carrying is a constituted legal authority, out its duties with full constitutional appoint qualified person § XI, 6, of Art. a reason to vacancy a on the board. county government. legally
There is no cessation of If the carry duty, fails to out its constituted board constitutional political (as may distinguished it create a hiatus from a one) legal may for which the two members be answerable constituents; to their but it not does create a situation in legislature may delegate governor duty which the a requires performed by that the constitution must be board commissioners.
Respondent tergiversates from the facts of the instant on the case—one board of commissioners— situation to an assumed where there are two vacancies or chapter even three vacancies. He cites 1933, Laws of 100, (a) (b) (1) (2)] §1 provides: [cf. RCW 36.32.070 vacancies] [shall be] [or “Whenever there is any county], [of
in the board of
[the
vacancies] shall be filled as follows:
said
[(3)]
“(2)
vacancies,
[a]
[shall occur]
If there are
three
[(2)]
governor
appoint
of the state shall
two
(2)
ap-
[
[said]
]
officers.
commissioners thus
The two
(3rd)
pointed
[
and re-
shall then meet and select the third
(2) appointed
maining]
[said]
[
]
If
commissioner.
two
agree upon
of the third
commissioners fail to
selection
[(5)]
[(3rd)]
days
expiration
from the
five
after
governor
day they
shall
appointed, [then]
[the officials]
were
appoint
commissioner.
[(2)]
“(2)
[shall be]
[b]
va-
there are
Whenever
governor
county commissioner, the
cancies in the office of
shall
[(1)]
appoint
[then]
commissioner, and the two
one
appoint
(2)
[re-
[
]
then in
shall
office
(3rd)
That]
maining or]
[
]
[Provided,
commissioner.
third
expiration
upon
they
after the
If
of five
fail to
a selection
gov-
day
[appointment,]
[(5)] days
appoint
appointment,
[then]
shall
ernor’s
(Bracketed
appear
(3rd)
in
]
words
[
commissioner.”
third
(2).
(1)
original
36.32.070
act,
are omitted in RCW
the
Italicized words
but
codifier.)
supplied
are
court, both
Respondent
of this
then cites two decisions
supra
quoted
prior
[cf. 36.32-
statute,
the 1933
decided
(1) (2)].
.070
Yeargin,
Farquharson
549,
(1901). Laws Ferry county, formerly part organization creation and gov- county. the act authorized the Section of Stevens appoint commissioners. The court three ernor provisional power to fill offices new held that the necessary legislative power incident counties was power counties, and that the exercise of such create new of the constitution. contravention Dimmick, ex rel. Gilbert v. 89 Wash. 2. State *8 (1916). county All three commissioners of Yakima Pac. 163 county removed from office as the result of a recall were governor appointed commissioners, who, two election. appointed the third. turn, relating general powers § Code, 8988, Bal. to the &Rem. governor, provided governor of that and duties filled, should “see that all offices are and thereof the duties performed.” validity gov- This court sustained the of the appointment saying: ernor’s commissioners, two county county “The commissioners a are the business county agents county, ordinary of a business be conducted their It follows cannot without authorization. county all the officesof in a that when necessarily is vacant, become there a cessation of government, power lodged and there must be some some- prevent where legislature. stitution for the hiatus. This has been done such . Where there is no . . in the con- county, appointment of commissioners of a majority and where commissioners of the the board offices of power vacant, become it is then within the governor vacancy by appointment.” to fill such (Italics ours.) apparent Farquharson cases, It and Gilbert supra, apposite; upon them and however, are not based (1) (2), quoted supra, respondent reason of RCW 36.32.070 (3), quoted supra, concludes that RCW 36.32.070 is suffi- cient to authorize of Mr. Munro. sequitur. Assuming argu non
This conclusion is a power endo that the has vacancies on three-member board of there commissioners when existing (a question are or three vacancies which is not decide), before us and which we do not it does not follow power only vacancy, this he has when there is one upon §XI, 6. The distinction view of is not based degree; depends upon difference of the existence or non quorum legally existence of a constituted board of having authority ap full to make King county pointments. legisla has such a If board. right deprive por ture does not have the of a board appointive power delegate judge tion of its it to a (State Pendergast superior court ex rel. Fulton, supra), right delegate authority it does have the this governor; chapter (c) hence, Laws (3)), (RCW being 36.32.070 in conflict XI, with Art. 6, of constitution, is unconstitutional. *9 532 governor’s of Mr. Munro to
The board King county is of null and void. of commissioners Eligibility to Munro Hold the B. Mr. Office. of question presented appeal— turn to the second this We eligible hold the office of Mr. Munro to commis- is King county? sioner thirty-fifth salary state increased the King eight thousand six per dollars annum to thousand
hundred twelve dollars. became RCW 36.17.020. This act effective June 12, 1957. salary only applicable to increase is officials whose subsequent commence terms of office to effective date Yelle, State ex rel. v. 12 of the statute. Wn. Henneford (1942); (2d) having (2d) Sears, Mr. 434, hence, 121 P. 948 January as commissioner on taken office four-year not term, could receive increased for a Washington during term of office. constitu- emolument his XI, Munro, Art. 8. Mr. II, 25; as the tion—Art. receiving appointive purported Sears, of Mr. successor is eight compensation six at rate thousand hundred appointed per one annum, a va- because dollars salary unexpired cancy term receive a cannot in- predecessor not entitled to State rel. it. ex if his crease (2d) (2d) Wyrick 132 P. 144 Ritzville, 16 Wn. v. (1942), cases cited. L. R. A. thirty-fifth legislature member was a
Mr. Munro salary King county of the office of com- increased January, legislator as extends His term missioner. provides: constitution, § 13, of the state II, during legislature, the term for of which member “No appointed or elected to shall be civil elected, he created, shall have been which state, office during increased, have been shall of which emoluments elected.” he was term for supra, Wyrick Ritzville, this v. court said: rel. ex In State forbidding change provisions the constitution “The during any public compensation officer his term of individual. ex to the term office refer (2d) (2d) supra [12 434, Wn. P. Yelle, v. rel. Henneford 475, 201 Hovey Clausen, 117 Wash. v. ex rel. 948]; State 42) ours.) (Italics (p. Pac. 770.” Hall, 26 Pennick rel. principle, ex case of State In Banc), (En presents (1946) (2d) 172, 173 P. Wn. one question There is but case. as the instant the same legislator at- case, the In Pennick factual difference: during as her term tempted office” elected to “a civil ap- legislator has been legislator; case, instant *10 legislator during pointed emolu- term as his to an office —the legislature in which increased ments of which were prohibition included in the situations are he served. Both quoted supra. § 13, II, of Art. twenty-ninth ses- a member
Blanche Pennick was salary legislature that increased the annual sion of the 6, 1945; The statute became effective June officers. legislator expired Monday the second of Janu- her term as July ary, she was the successful nominee of party Grays political for the office of auditor of her Harbor county. quoted supra, §II, 13, constitution,
Because of Art. prohibiting of the trial this court affirmed decision court certifying county election board from her name on the saying: ballot, official eligibility prerequisite
“It is for election in the sense participating becoming candidate in the election eligible process time, that be, that a candidate at to hold the 177) (p. office.” legislator, during term office, A if a his fortiori, eligible for an office, become a candidate the emolu- increased of which were of which ments appoint- legislator eligible member, the is not he was a ment to the office.
Respondent find can no solace State ex rel. Todd v. 82 P. Reeves, 196 Wash. 118 A. R. 177 L. Banc). (En signers (1938) opinion agreed of this are Todd case does not control the one, that the instant but for distinguishable; some because different reasons: the case is some because it has silentio; been overruled sub others be- cause it should be overruled.
The facts were these: legislature, George
The 1937 of which Senator F. Mc- Aulay system member, was a created a retirement for the judiciary. McAulay Senator filed his declaration of candi- dacy judge supreme for the officeof court. This court prohibiting secretary certify- denied a writ of state from ing his name for inclusion on the ballot. opinion
The writer is of the that the Todd case is distin- guishable, although recognizes cogency argu- he ments it that has been overruled sub silentio expressly should be overruled. scope respondent
The Todd decision is narrower in than contends. The court said: inquiry question “Our will be limited to the whether there is tive increase in the emoluments of the office effec- during six-year respondent term for which the
McAulay (Italics ours.) (p. 148) has filed his declaration.” The court concluded:
“While the for retirement makes the officemore attractive, the fact *11 emolument, remains no within the meaning supra, § during respon- of 13, 2, could attach McAulay’s six-year (p. 150) dent first term.” signed majority court Three members of the who signed majority opinion opinion in in the Todd case 1938 Pennick case in which notes that the Todd case only the definition of the word “emolument” as dealt with in used the state constitution. in the circumstances of the instant conclude,
We eligible Munro is not to hold the office of Mr. case, that county. King commissioner judgment foregoing reasons, the is reversed and
For judgment remanded, instructions enter with for case opinion. this appellant consistent with emergent nature of the facts disclosed, Because is instructed to transmit remittitur this court clerk forthwith. ordered. is so
It J., J., and C. Foster,
Hill, concur.
535 dissenting part in (concurring in and J. Ott, majority that conclusion part) concur with —I apply to does constitution 32 of the state amendment question, further, that and, officehere in elective 36.32.070], p. § chapter [cf. RCW 415 100, 1, Laws of appointing commis precludes Further, I con case. the instant the facts of sioner, under majority that the conclusion of cur in the facts, only presented, vacancy, can here under (Art. XI, made the board constitution), the board that members of and 6, state quorum sufficient to constitute county. carry [cf. RCW 36.32.010 on the business § 4036]. Stat., Rem. Rev. majority opinion portion of the
I dissent to that eligible the office is not that Mr. Munro holds which unexpired the constitution. II, of Art. virtue carry Sears, deceased, does not with term of Commissioner the constitution forbids it the increased emoluments increased He not receive the Munro to receive. will Mr. commenc is re-elected for the term unless he emoluments authority previous By ing decisions of State of our in 1961. (2d) 173, 118 Reeves, 82 P. ex rel. Todd v. Wash. (1938), Hall, rel. Pennick v. ex A. L. R. (1946), eligible (2d) 172, 173P. Mr. Munro is Wn. the office. hold Ott, J. J., concurs with Mallery, (concurring part dissenting part) in J.
Rosellini, majority provisos of amend- —I with the concur only apply to the vacan- of the state constitution ment 32 legislators and not to other of state cies the offices partisan elective office. chapter majority I cannot with
However, *12 p. XI, 6, §, 1933, 415, is in conflict with Art. Laws governor power and the has no constitution, state appoint statute, under this which commissioner provides:
“Whenever there shall be a or in the vacancies any county, board said commissioners of the va- cancies shall be filled as follows:
“(a) (3) gov- vacancies, If there shall occur three (2) appoint shall ernor of the state two of the said officers. (2) appointed shall then meet two commissioners thus (3rd) remaining and third If select the and commissioners fail to commissioner. upon (2) appointed agree the said two (5) (3rd) expiration after selection of the third of five days governor day appointed, from the the officials were then the appoint remaining shall commissioner. (2) “(b) shall in the Whenever there be two vacancies ap- governor then commissioner, office shall point (1) (2) commissioners commissioner, one two remaining (3rd) appoint or third then in office shall commissioner: they upon if fail Provided, That (5) days day expiration of from the selection after appointment, five appoint the third then the shall (3rd) commissioner. (1) vacancy “(c) one in the there shall be Whenever any county state, commissioner of office of appoint remaining to fill the shall (2)
vacancy: the two Provided, That should expiration agree upon after the of five a selection fail to gov- (5) days day occurred, then appoint [cf. commissioner.” ernor shall 36.32.070.] RCW guide principles the court in its which
The fundamental involving upon approach an attack the constitu- case tionality are: the state constitution is not of a statute law-making power, grant, and the a restriction of but power enact all reasonable laws is un- expressly except where, either or fair infer- restrained prohibited or Federal state constitution. ence, it validity pre- there assailed, of a statute is is a Where constitutionality legislative sumption enact- repugnancy clearly to the constitution ment, unless its appear beyond appears is made to a reasonable doubt. p. Parosa, Tacoma v. ante 324 P. Port cases cited therein. open constructions, a statute is to two one of
Where unconstitutional, and the other will render constitutional
537 rendering interpretation This given it valid. it be should repeatedly applied by principle this has been fundamental Campbell P. Case, 334, 182 Wash. 47 State ex rel. v. court. (2d) Utility 1, 24; Co. v. Public Dist. No. Wn. Casco (2d) 777, 226 P. Farquharson Yeargin,
In v. held, it Wash. was p. providing 1899, 26, that the Pac. Laws appoint Ferry three should county, organized act, created and under that which was provision that this did not contravene that county required constitution which that all officers should by people. be sort, elected Provisions of this said apply emergency, court, do not to cases of such as the creat- ing county organization offices, of the usual on of a new county, power county provisionally to fill offices in new being necessary legislative power counties incident to create new counties. emergency
In another
situation, where all three of the
county
legisla-
had
recalled, and,
been
under
governor appointed
authorization,
tive
two commis-
appointed
sioners
in turn
a third,
who
this court held that
application,
contingency
Art. XI, 6, had no
since this
was
by
contemplated
being necessary
framers,
and,
prevent
county government through
an entire cessation of
county
all the offices
commissioners,
power
necessarily lodged
legislature
pro-
filling
vide for the
of these vacancies. State ex rel. Gilbert
Referring
Dimmick,
v.
89 Wash.
holding Farquharson Yeargin, supra, the court reaf- power gov- firmed that the has to authorize county ernor to fill vacancies in the office of the commis- emergency provided sioner, where an arises which was not for in the constitution.
In cases, both of those all of the offices of commis- clearly nothing sioners were vacant, and there was providing filling could be under XI, 6, done for the vacancies board, action of the since the board in each case was non-existent. supra: said in Dimmick, As we State ex rel. Gilbert v. " “The commissioners of a are business
agents a-county county, ordinary and the business of , cannot be It conducted without their authorization.- folr lows that when all the offices commissioners in necessarily become vacant, there is a cessation of county government, power lodged must and there some prevent hiatus. done somewhere such This has been legislature.” only question whether, one when there is *14 remaining fail to board, on a commissioners the two emergency agree appointment, on an there results a similar provision I in think for which no is made the constitution. complete although does, for, it that a cessation remaining may not follow, business need it do if the two so agree any matter- which commissioners are unable to on agree, They duty nor have no comes before them. imagine, duty easy existed, if a it could ever'be such how only provides that, enforced. RCW 36.32.130 when present meeting a members are at a board and divi- any question place, under consid- on takes the matter sion subsequent meeting. postponed shall to the next eration only composed plain, if two mem- It is that the board is indefinitely, postponement with bers, such could reoccur proper that the conduct of the business affairs of the result seriously hampered halted if not alto- would be duty gether. time, At the same there would be no breach part on the of either commissioner. involved insisted, however, this held a similar that court has It is Pendergast provision in rel. v. State ex unconstitutional legisla- case, Pac. 779. In that Fulton, 37 Wash. provided a occurred on the where ture had that judge superior commissioners, a court board appointing remaining in act with the commissioners should vacancy. vacancy had to fill Such a oc- an individual county, Okanogan commissioners for curred on board of ignoring statutory remaining commissioners, and the agreed appointment pro- upon provision, and had an had quo vacancy. warranto The action in was fill the ceeded to brought appointee, being contention to oust the concurrence of the commissioners could not act without the superior judge. appointment It that the was was held saying: valid, the court question
“There is no but that a commissioner is a officer, and that under the of said art. remaining have full members of the commissioners board authority appoint person suitable vacancy granted by that, authority is also board, on the and that such [providing Code, 346,
Bal.
above mentioned
any county
office,
in
the com-
when
occurred
appoint
proper
elector of
missioners should
suitable
vacancy].
county
Whitney,
to fill
State ex rel. McMartin
such
Reliance is Tucei, also ex rel. Parks v. *15 city 175 Miss. 166 370. In that case, So. a councilman’s expired days resignation. city term after his Three (the mayor councilmen) officers and two remained, who municipal were authorized to transact affairs. It was held emergency justify that there not was such an as would an appointment by remaining on the failure of the city officers to name a successor. The decision was correct Only working day on the facts. one remained before the newly elected councilman office, was to take and since there capable acting were three officers of interim, in the no dead- likely. Clearly, emergency lock was no existed. But the entirely presented facts are different those in case, this holding application and the has no here. plain people, adopting
It that the seems in XI, 6, Art. appointments in had mind that should be made a full agreement part of board, at failure of on the least where a. constituting quorum as stalemate, results in a those necessarily quorum, and that where two constitute does board, provision reconstituting made where no was one of its officesis vacant and the being are unable on the choice of a This to third. composed being case, and a three members neces- board of sary county business, of for the efficient transaction contingency, empowered provide for this was making contravene and the statute such does not §XI, 6, Art. constitution. disagree majority respondent
I with is wrongfully holding commissioner, office namely, ineligible by provisions is virtue of he §II, 13, reads: legislature, during
“No member of the term for which appointed any he is elected civil office elected, shall be or the emolu- state, created, which shall have been during term increased, have ments which shall for which he been elected.” narrowly in construed Provisions of this sort should be Nye, eligibility. 148 Wis. favor of State ex rel. Johnson v. Wiseheart, 126; rel. Hawthorne v. N. W. State ex Eligibility office 158 Fla. to an So. 589. presumed denied, is to than to be state rather eligibility any person an office doubt as hold against rel. Weston v. must doubt. State ex be resolved Schragg, 74, 158 Wash. Pac. position appellant clear II, 13,
It is that Art. is unambiguous, legislator may that it means that a during legislative an his term if the emoluments hold office regardless during his term, that office increased were pro- However, this the increase becomes effective. when holding prevent intended of such vision was not legislator cannot if the increase emoluments office during possibly apply the term he to him for which provisions purpose *16 this kind are The which elected. ably expressed by Story, in his on serve, meant is work States, 867, of the United as follows: the Constitution excluding persons from who have offices for reasons “The increasing creating emolu- their them, or in concerned been any improper possible, away, as far as take ments, are to representative, and to secure bias constituents vote pledge disinterestedness.” of his solemn some purpose reasonable framers, it is If this was the apply provision where meant to was that the assume legislator, newly by appointment created election to the legislative enjoy the benefits office, (cid:127)or enhanced will he could never course, mean, This action. would during newly term, but qualified his created office to hold a pre- unqualified in to serve he mean that is it does not possibly enjoy increased existing he cannot officewhere ap- during elected or term for he is emoluments interpreted pointed. provision ex rel. thus was (2d) 173, 118A. L. R. Reeves, P. Todd v. Wash. eligible legislator to be held that a 177, wherein we legis- during judge supreme court, his term as elected though he a member of which was lator, even providing pay judges, for retirement had enacted a law pay during eligible for such or at the he not be since would question court, case, first term. The said the end of his increase in the there emoluments was “whether six-year during term for which the office effective (Italics McAulay respondent has filed his declaration.” mine.) attempts distinguish appellant case, this maintain- question
ing re- decided on the sole of whether that was very quota- pay emolument, but the tirement constitutes relies to demonstrate this contention belies tion on which it it: provision for retirement makes the officemore
“While emolument, remains that no within attractive, the fact during supra, re- meaning could attach Sec. mine.) (Italics McAulay’s six-year spondent term.” first question presented controlling here. The case is appellant position I do not with is not free be overruled. The the case should designed ambiguity it is considered that it was when *17 legislators, voting on matters some assurance afford by aspira- sort, not influenced their own of this would be aspiration question, of this the office in and that no tions to not the increased emolument will kind can be served where during legislator term he be for which available to the ap- Significantly, prohibition appointed. is elected or legislature. legislator’s plies only during term in the expires, may aspire legislative term he If, as soon as his have office, the office the emoluments of which the new or people in mind that the had increased, been it must follow enjoy legisla- only ineligible to the fruits of his that he be legislature. during This his term in the be- tive endeavors ing cannot case, an increase in emoluments which legislator during the term of officefor received disqualify appointed him from elected, he or does hot is n holdingthat office. (2d) 172, 173 P. Hall, Pennick 26 Wn. In ex rel. v. State legislator §II, 13,a was 153,it held that under Art. was ineligible office, the emolu- for an to become a candidate during term in the increased her ments of which had been though legislature, her term in the new office would even legislative begin expiration In term. of her until the question that the increase in there no but case, was legislator, and the receivable would be emoluments eligibility only her the court was whether issue before filed her candi- of the time she be determined as should dacy therefore The case is or as of the time she took office. point. not in majority’s prior inter- law, as announced
Thus the eligible respondent hold the pretation, is that the eligible a candi- and is to be commissioner office of unexpired term of the deceased election date for commissioner. upon contrary majority’s is based conclusion to the county government can assumption that no cessation of only composed members. where board
occur supra, recognized 36.32.130, in RCW has county government can occur. cessation of that a Furthermore, refused, failed, has majority apply rules of constitutional long-established statutory in Port Tacoma Parosa, v. set forth interpretation Campbell Utility Case, ex rel. Casco Co. v. Public supra. Dist. No.
The judgment the writ should be affirmed. denying JJ., concur with Rosel- Donworth, Finley, and Hunter, J. lini, Department July 3, 1958.] One.
[No. *18 City Respondents, James R. O’Brien et al., v. The Appellant. Seattle, 1Reported in 327 P.