Case Information
*1 OFFICE OF THE ATTORNEY GENERAL 6F TEXAS r of the State lcm may imrve aa lien Rmmy Bear- the deeorlbed
Permit us to quote y
e legal opinion i this depa
"one of the melabe* on the Alie t anembers of are not ret- such boards qaircd to gi
ended by the Department have independent povere. 'to the Attorney oeixmal. .deolalon In the matter, therm hearing board*, In other vorda, ly advisory capacity.
am advise whether la your opinion for a member OS the State Board of sanm tlms to uerve as a member of an arlng Board under Seation 12 of Article of the Constitution of this state. Your early ad- vice will be deeply apprealated."
State Board of Education, Page 2
Cur investigation discloses the SollovIng additional fasts regarding the orlgln, status and eharactrr of an Allen meary Bearing Board.
Pursuant to Section 21 of Title 50 of the United States &&~"&~PZ+6sldent of the United St&t&e by proclamation charged ths/Wited States Attorney General vlth the duty of executing all r&ilatlons contained in tha proclamtatlon cono~rnlng alien enemies v~th%n continental United 8tates.sad it8 possessions. In the sxscution '6f his responslbllit$ in this regard, ths Attorney Gen- &al has set up in,eaoh judicial district a,hearlng board for alien enemy cases. Them, is no express conbtltutlonal'or stat- utory provision for ths board. Its purpose aP4~tictlon Is to hear and make recomnendat~ons to the Attorney QeZieral with respect to the dlspoaltlon of the -aages of alien enemies brought before
Written reports and reuo+wnd4tlons are made to the Attorney &&al by the board. Firraldeatilen lneachcasels made by the AttOrD3y General and this deaiaiom 18 enforoed by the United States Attorney. The board is smely~a fact f3.zuUng 6ad advisory sdministratlve lnst mnwntality; It Mither makes,nor enforces dsolslons.
The oath of office taken by members upon the Board 1s prsaoribed and required by the Attorney General. The appointment lstempo~rysadnotforanytlme certain. Itlnheres in, end sxlsts only because of, the war emergency. The board meets only oucaslonally and its activities are spopadie.
Ton ask vhether a swsber of the State Board of Educatlo~ may ssrve as a member OS this board in view of the prohibition contained in Section 12 of Article of the Constitution of Texas. Section 12 reads as follows:
'Ho member of congress, nor person holding or exercising any office of &wilt trust, under the United States, or either of them, or under any foreign paver, shall be eligible as a meinber of the Legislature, or hold or exercise any office of profit or trust under this State."
It la clear that a member of the State Board of Bduca- tion holds and exercises SD. offiae of profit or trust under the State of Texas. *3 Page
Stste BOati Of ~UCation, We must determine If membership upon sa Allen Enemy gssring Bosrd constitutes the holding or ese~alrlug of an office of prqflt or trust under the United States. We have concluded that ~$t does not.
Tils preolse question has never been before the courts T0iaB. Our conu~uslon finds substsntlsl support, hovever, In other jurisdictions.
.The case lo~toskvs. wltohinson, 59 P, (26) 1117, by the Supreme Court of Weshbgtoa, presented the question of ðer the aeceptsnoe by a State Sanstor of an appointment as District Supervisor of the Federal York8 Progress Adninistrstlon iacated his office. The constltutlonsl provision iavolved read as follovs:
"And if any person after his election as 8 mm- ber of the Legislature shell be eluoted to Cox&gress or be appointed to any other offlae, civil or mlll- tary, under ths Government of the Uuited States, or any other power,,his smxptsnee thereof shell v8cstb his seat. l * +
The appointment of the Senator in question uas msde by the State Director of ths Works Progress A&slnlstmatlon, the State Director aatlag under the suthorlty of the Federsl mergemy Re- lief Approprlstlon Aat oi 1935, -15 U.S.C.A., par. 728 note. The Pedersl lsglslstlon under vhich the Dlreotor sated in m&k* the appointment creatqd no district dlvlslonal office for the ad- mlnlatrstlon of the V. P. A. The dlvlslon of the state into districts was s mere Mttcr of convenience and, as said by the court, *not required Q1r msde msndatory by the lsv."
The close parallel to the mstter before us is obvious. In reaching Its decislcm that the Senstor was not appointed to. 8 civil office under the Oovemment of the U&It& St.&es snd that his acceptsme of eatployment under the If. P. A. wsa not the ac- oeptsnoe of a civil orrice, the court ulted the case of Bsrney vs. Bsvkins, 79 Mont. 506, 257 P. 411, A.L.R. 583, and that aourt*s Malysla of the authorities upon the Question of vhst eonstltates U office. 8s follows:
Swt,e Board of Eduaation, Page
"After an exhmkstlve eaMnetlon of the author- ltiea, we hold thst five elapenta OH indispensable In any position of.publlc eqlmnt,:'b order to mske it a public offlee of a civll~nStucbt (1) It must be created by the Constl~tlun OY? by the Legisls- ture or crested by a ~lclpsllty or other body through authority conforrti&.by.ths Leglslatureq (2) it stunt possess a,dele$*tl~.of a portion of the sovereign pov6r of governrpeqt,.,ki b6 exercised for the benefit of the publlCj (3) the povem~:coaferred, Uad the duties to be discharged, wst be defined, dlreatly or implledly, by ths legislature or througk,leglalative *uthor%ty; (4) the duties must.be performed Independently end vlthout control of 8 superlar power, other than the lav, unless they be those of sn lnferlop subordlaat~ offlee, crested or suthorised by the Leglsl&ure, and by It plsaed under'the general oontrol of a superior offlter or bodyj (5) it must have some pe nBaaeaay @ad ilontlaulty, and not be only temporary or oaoasloaal. Ia ddition, in this state an officer must tske and file an offlolal o&h, hold a eomslsslon or other writtea authwlty, utd give sn offlol8l bomd, If the latter be required by proper authority.'
Employing the wruhanlsl.of this snalysis in its applies- tlon to the appointuent of a Dlstriat Supervisor of the Paleral Works Pzvogress Adminlstrstlon, the Sup= Court of Usshlngton declared, flrst, that no office of dlstrlct.supsrrisor for the ad- mlaistratlon of the W. P. A. had ever been areated snd the super- visor ves\no more than 8a enployee under the state Director: second, ?$ere was no delegetlon of sm p&t of the sovereign power gorermsent to the District Znpervlsor; third, no pwers Were coaferred and aoae could be defined; fourth, the Dlatrlot Supervisor had no duties to persons independently end vii&out the control of his superior; and fifth, there van nothing to lndlcste ~pemmaeaeyor continuity of theappolntaentlnquestlon.
The Usshlagton Supreme Court concluded thst it van bound to hold thst the Senator was not appoInted to 80 office because *the great velght of authority veil supports the necessity of meet- lng all of the conditions laid dovn by ths ltontsna Court and l l * it is not made to appear that these condltlons, or any of them, hsvebeenhereaet.***"
St&e Bemd of Zduakion, Pacle 5
Of like hold- srs the eases of Blggs vs. corley, Atl. 415 (I)el.)l Cut-tin vs. State, 214 P. 1030 (Cal.) snd mir vs. Elliott, 15.6 P. 216 (~010.).
Similar constitutions1 prohibitions vere involved in State vs. Joseph, 78 So. 663, by the Supreme Court of ~ouislsna. m this case the Clerk of %ourt and Xx officio Jury Commlsaioner h& been appotited a member of the 'local board" westted by the sat of Congress of Msy 18, 1917, the seLe.ettlve urviee lav of that war. spooking of Article the ~siaaa constitution,
&MI contained a prohlbltlon slmS.lar to thst under reviev of the Texas Constitution, the court declared:
"In the instent cebse It ma7 vell be oonuelved thet artlele 164 of our Constitution vam not irslbd with referenae to the existence of 8 state of mkr, whop It vould betoms necessary for the federal govem- ISoPt, ill the t3UrOisS Of the POVOr iWXlftST6d aad Of the obllgatlon Imposed upon it by the constitution '. t.?leullltedstates, for thepreservetlonofours~tem or government and the protection Of hmssnlty, to rva¶.l itself of 8l.l the resources at its ~cssmand, and an exoeptlon must be read into that srtlole and into every artidLe of everystate Uemstltutlon vhlch may be can- stmod as~obatRtctS.ng the ()t4rc4lse of that power and the discharge of thst obllgrtlon, for the Constitution of theunited states is the paramom3tlawof the lam& zr :I&? upon the congress the polfer 'to provide
o3msoa dafensei' to ~doclars var; ' to 'wise
and,support armlesx ,'to provide for oslling fonth the sillltla to execute the 18~s of the IJnion~~ *to provide for orgsxilzlng, ambg, and dl801p1lnln.g the mllltla and for goveming such part of them as may be emplopd in the service of the United States;' and 'to make sll .%~a vhloh shall be necessary and proper for oaarging
into exeetltlon the foregoing pavers.' Canat. 8.9. AFk. 1, I 8. And, In the exerelse 0S thepowers so40nTeAedr the Cortgress has enacted the statute k~%ovn as the *Selectlve~~:Semloe L8v9' oblch provides for the aonsurlp- tlon of c&tens of the country for military service Pt home and abroad, snd the conssrlption, it saay be ssid, of $ate officers and cltiaens for the dlsme of cer- tain ftzuctlons connected therewIth> a~ follewsr whereu~thaCQurteasveredthe follovl.Qg @8stlollsn the negative:
i
stati miard or Education, page
'The question in thla ease then Is ahoula artl- c1e 164 of our Constitution be interpreted toB6zm that a citizen, holding 8 state offlae, upon whi?m, under the C~onstltutlon and laws of the Onittd States, addltlonal duties are iorr;oeed by the President in aid of the ralslug and xsalntenrmce of an arny for the prosecution of a great and necessary nr, Sorfolts his office by reason of his acceptance of that vhlch it vould be unlswful aud unpntr%otic for him to dec13nePm This latter language and the Texas Supreme Coxwt saw of Cerpenter v. Sheppai'd, 135 Tex. 413, 145 S. U. (2d) 562, ns cited vlth approval by the Suprmte Court of California in the case 0s BIeCoy vs. Board of Supervisors. 114 P. (26) 569, decided June 30, 1941. The C811foXTll8 court also de0lared:
"Rot only have State and !Katloml leglelatlre bodies been alert to meet the need for ape&al pro- tective m6a8ure~a. but atate taad Pbd6ral courts have kept paoe and have evinced d firm intention to ta!m a llbersl vleu of there earrsrgencj ensatFaants in order that their proteatlve purpoasa ma)- be fulfilled vlthout undus lmpoaltlon of conatitutlonal ltiltatlans or h%ndsrsnce through narrov judlclsl conatruetlon. PPIiOr thXW8t0, On I&V 2% 1941, ths Z3Jp8iW COUPt Or C& lfonala, ing for t&e creation cf the Callfornle Conrmission on Saterstate Riley, in Parker vs. upheld m, P. [8] statute prod.& Caoperatlon, against the contention that it was unconstitutional be&ause of the ~folloving provision of the Cellfornla Constltutlonr
"Ho Senator or member of Assembly shal1, during the tern for vhlch he&all have been elected, hold or accept say ofzice, trust, or ainployment under t&Is state; + + l
The statute meat* the cmmA3slon provided that nmmbem the Senate and Assermblr should constitute its membership. It vas cortended that mmbsrship upon tbe comisslon oonstltuted 811 *office, trust, or employmxlt,Y vherefore members of the Laglsla- hrs could not lavfully serve in such capacity. i ,. I_/
In holtllng that membership upon the eomissl.on vas not t.be holding of an “office” or "trwt," the eomt said: *7 g&de Board of JSducatlon, Pam
"It may be noted, howwer. that the positions created by the statute here attacked Wok certain elmsenta usually associated with an *office* or 'trust.' Thus, it is generally said that an office or trust requires the vesting In an lndlvldual of a portion of the severe powerad the state.
(Citation of euthorities 'ep The positions here created donotmeasure up to so hlgha standard. They ln- solve merely the lnt8rchange oi lnfonsatlon, the as- sembling of data, and the fomulation of proposal to be placed before the Legislature. Such tasks do not require the exerolse of a part of the sovereign power of the state."
In Glllesple vs. Barrett, 15 H. B. (26) 513, the suprem Court of IllInoIs held that a constitutional provlslon prohlblting state legislators from rscelving any sclvll appoInt+smnt' vaa.not vt6lated by aots creating the Qettysbwg XemorIal Casml6slon, the .&oM.q%+?&e Camsis~sIon aud the Betz York World's Fair CQIIILIssIon, .to k toaposed partly of hd43 lagislatom to eorve without sala- rioa. The court declared that for swh an,appointment to v$olate sonstitutIona1 provisions of suoh nam the appoiatment must be ef * pensanent nature and must lend itself to per6oual vise- ment vith an opportunity for private gain, pecuntsry othervIm. And the court pointed outt "The 8ppOiZLtXSeXXtS are mewly tempOV!APy; the statute forbids the payment of 8alarles dimtly or lndlreetly, snd no policy-making power l.s delegated. The members of the cop- mlsslon ars merely intrusted vlth the supervision of the minister- Iel details of a legislative enaetrent.m
The applloatlon of these at&horltles to the question you have propounded appertaining to Section 12 of Artiole 16 of the Constitution Texas Is apparent. Therefore we hold.that t.hls P~~vIslon of the Constitution of Texas does not prohlblt a aider Of the State Board of Education fnm serving at the same time as s member of an Allen Fin- Hearing Board, oonetituted as we have deacrlbed.
We Mgard it as proper to observe that we have COnsideP- ed the appllcatlon of section 40 of Artlele 16 the.Texas Con- stitution and are of the oplulon that it does not forbid the Wmbemhlps under review.
Moreover, in order that the crcmplstte r~mifIcatlons of thh qU88tiOn may hSVe been explOP6d end passed upon, we h8V8 alao COnsIdered the application of Seetion of Article 16 to the mat- ter under revlev. Tbl.5 Sectloll r6ads in part. as follovs: I
St&o Board of Bduoatlon, Psge 0
"The aoooutiting OffiU8PS of this state shall uelther draw nor pay a warrant upon the Treasury in favor of any person, ior salary or oompensatlon as agent, officer or appointee, who holds at the ssme time any other offloe, poliltlon of honor, trust or profit, under this State or the United States, !x- oept es presorlbed in this Constitution. * l l
Clesrlg, of oourse, a ms4s?b6r of ths State Board of ausatlon is an agent, officer or appointee" of the atate 0r l We have akeady de&led that SWSb8PShip upon an Alien TewM pnw Hearing Board Is not an "offioe." It 1s Our opinion, more- ov.p, that it does not fJOXlStihlt8 a "positiOn* a5 that t8l%l YBS intended by th8 framers of the Constltutlon.
The case of Johnston Y. Chambers, S. 8. 263, by the gwrase Court of Georgia, arose under the Seleotive Draft Aob OS the World Var. The Polioe Ccsmniaslon8r of the Olty of Atlanta -5 appointed to the Bow-d of Exemption, sonstitutcsd ia all l *sea- act the Al&n Finemy Ifearing Board we an oonsldering. It was tlal8 sante&8d that the Ccmslssloner bemuse fbereby disqualified ircm hoMing the office of oU8sloner uudsr the charter of the City ef Atlanta providing a8 follovst "St shall be unlavful for any person holding
an off100 or position of trust, or emolument, or regular smpuysmnt, mder appointment by the President the United States, or any department of the federal government, l l it to ocoupy or hold the position of laspor,alde1%1SU3, or OOunCib5.1~ Of the Olty Of Atlanta, or m8mbershlp on any executive board of said olty, or any other office or position of trust, honor, or emolument, or regular employment in or under said olty government, * l * .* (Undereooring ours)
It is observed that the t8ISSS "off'ioe or pOsitiOn' were present.' The oourt held that the CommlssIoner va8 not dirqudi- fled, saying In part:
' l * l The dutl88 vhloh those thus called upon were expected to fulfill ver8 of a pstPiOtiC natUM, from whlth a oitlsen could not esoape vlthout evading his patriotic duty to aid in 8 temporary emergemy his country end his government, in seleot%ng and or- genlelng an anay fit for the high and lmperlous duty *9 state Board of Eduaation, Pago,
aonfx-ontlng le. The dutlee vhloh the80 board8 vere aalled upon to perform VOM of the met ex- alted oharaoter, but they wore *8 trti8itov and ephemeral ~8 they vere exalted;;'and it van the duty of any olticen aealled to m$@fm~hlp upon one of these board8 vhether a private olticen or the holder of any ofiioe, to lay aride all other dutie8 for thehour.and~epondto the esll. The court below properly denied the appllaatlon."
vhile ve think it is rnanlfest that the term w~fffeeg pnd "po8itionR are not s~onymous and vere not intended to aonvey ~~saau,meanlng and oantaln the mme prohIbition, ve are of the opf.&on that the dlfferenoe betveen the elgn2fi~etlon OS the t+mt3 must neael3rar%ly be one or degreet that they vere used ill a relative 8enae. j\lllt 08 an qsp o%lltaent muat hare l aortain &i$&tr elaWlt8 Oel'tsin 08WSltial U55 (Ark). aluo Reading o.mmvell, 52 P. (26) t0 O~lltitllte 811 Off$Cie, t0 OOMtitUtff jU8t 80 lrmst Pp CrppOintit a ~itiOZl. m m8-
m t9rpl 'bO6itiOn' islp11ef8, BIP 0-3'8, 8kbility, ompesmation, duratiorh The absenae, or re tlve ablienoe, OS thewe ?a
88WUitial.s, appertalnf..ng to member6hlp upon an Allem Enemy Eearlag Bmrd,is mnifeest Mm our reviewof it8 c&gin, etatw and obaraoter.~ F7wtLcularly oontroll&3g a* ~theae faokt m661berehip upca the Beard ls enttrely temporaryz It& memberr ‘we engaged in the do&g an emergsuxoy rervlca for the Government in glme of raw the sarvlcs8 performdars erosnt~~de8ult~ry, spoxmdia, oaaarbm6l~ no 0 ompenmtion paid and there ia al% abrenoe of pemmenoy and aontlntity in the Board Itself. .
YOUX'8 very‘truly