This is an application for a writ of prohibition directed to the secretary of state. The facts upon which the application is rested are undisputed. They are as follows: The defendant McAulay filed with the defendant Reeves, as secretary of state, his declaration of candidacy for the office of judge of the supreme court. At the general election of 1936, defendant McAulay was elected to the office of state senator. The term for which he was elected does not expire until January, 1941. The legislature to which he was elected as a member of the senate passed what is known as the Judges' Retirement Act. Laws of 1937, chapter 229, p. 1172. Upon these facts, the relator asserts that, under Art. 2, § 13, of the state constitution, defendant McAulay is ineligible to hold the office of judge of the supreme court. For that reason, he seeks to enjoin the printing of Senator McAulay's name on the ballot for the primary election to be held in September.
Under the decisions of this court, there is no question but that relator, as an elector and taxpayer, has the right to maintain such an action. State ex rel. Reynolds v. Howell,70 Wash. 467, 126 P. 954, *Page 151 41 L.R.A. (N.S.) 1119; State ex rel. Chandler v. Howell, 104 Wash. 99,175 P. 569.
Senator McAulay's eligibility to hold the office of judge of the supreme court depends upon whether or not the legislature, by Laws of 1937, chapter 229, increased the emoluments of that office. For the constitution (Art. 2, § 13) provides:
"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 whichshall have been increased, during the term for which he waselected." (Italics mine.)
Laws of 1937, chapter 229, provides (§ 1) that judges of the supreme and superior courts, who have served eighteen years in the aggregrate, or, having served ten years in the aggregate, shall have attained the age of seventy, or who (§ 2), having served ten years in the aggregate, shall have become incapacitated, may retire on half pay. By § 7, p. 1176, Rem. Rev. Stat. (Sup.), § 11054-7 [P.C. § 4418-207], of the act, there was created "The Judges' Retirement Fund." Provision for the establishment and maintenance of this fund was made by a two and one-half per cent contribution by the judges from their salaries, matched by a like amount from the state. Provision was made (§ 9, p. 1178, Rem. Rev. Stat. (Sup.), § 11054-9 [P.C. § 4418-209]) for the state's contribution to the fund for the biennium ending March 31, 1939, by an appropriation of ten thousand dollars from the general fund.
The question, then, is: Have the emoluments of the office of judge of the supreme court been increased by the provisions of the act? To this question, under all the definitions (lay and legal) of the word "emoluments," I can find but an affirmative answer. *Page 152
In Hoyt v. United States, 51 U.S. 108, the court, in discussing fees, commissions, fines, etc., a portion of which were allowable by statute as compensation to the collector of the port of New York, said:
"They are also distinguishable from the term emoluments, that being more comprehensive, and embracing every species of compensation or pecuniary profit derived from a discharge of the duties of the office."
The supreme court of Minnesota, defining the term in State exrel. Benson v. Schmahl, 125 Minn. 104, 145 N.W. 794, said:
"We think it clear that the word emoluments in the Constitution does not refer to the fixed salary alone, but includes such fees and compensation as the incumbent of an office is by law entitled to receive because he holds such office and performs some service required of the occupant thereof. The Century Dictionary defines emoluments as: `The profits from office or employment; that which is received as compensation for services, or which is annexed to the possession of office as salary, fees and perquisites,' and to this definition Bouvier adds: `It imports any perquisite, advantage, profit or gain arising from the possession of an office.'"
That the right to retirement pay is a "perquisite" of the office of judge of the supreme court seems to me obvious. For the right is essentially a pecuniary advantage arising out of the occupancy of, and service in, such office for the length of time and under the conditions prescribed by chapter 229, Laws of 1937. It is only upon the basis of occupancy and service in the office that acts providing for retirement pay are held to be constitutional appropriations of public funds. Schieffelin v.Berry, 217 A.D. 451, 216 N.Y. Supp. 367; Retirement Boardof Allegheny County v. McGovern, 316 Pa. 161, 174 A. 400.
Quite a persuasive argument is made to the effect *Page 153 that Senator McAulay cannot, during the term of the judicial office to which he aspires, possibly become a beneficiary under the provisions of chapter 229, Laws of 1937; that, assuming his election, he would have to be re-elected in order to be eligible to any benefits; that, in the meantime, his salary as judge would not have been increased, but, under the terms of the act, diminished by two and one-half per cent. I think, however, that acceptance of the validity of that argument amounts to nothing short of judicial supplementation of Art. 2, § 13. The section is too plain to permit of such construction. It, of course, does not mean that, because defendant was and is a member of the legislature which passed chapter 229, Laws of 1937, he is forever ineligible for the office of judge of the supreme or superior court. It simply means that, in view of the provisions of that chapter, he is ineligible to the office of judge of the supreme or superior court "during the term for which he was elected" tothe legislature. Of an identical constitutional provision, the supreme court of Wisconsin, in State ex rel. Ryan v. Boyd,21 Wis. 210, said:
"It is not contended on behalf of the respondent, that the disqualification created by this provision is anything more than a temporary one only, forbidding the election or appointment of members of the legislature to offices created or rendered more lucrative by themselves, during the term for which they were elected such members. Mr. Justice STORY, in commenting upon a kindred provision in the constitution of the United States, says: `The reasons for excluding persons from offices who have been concerned in creating them, or increasing their emoluments, are to take away, as far as possible, any improper bias in the vote of the representative, and to secure to the constituents some solemn pledge of his disinterestedness. The actual provision, however, does not go the *Page 154 extent of the principle; for his appointment is restricted only during the time for which he was elected, thus leaving in full force every influence upon his mind, if the period of his election is short, or the duration of it is approaching its natural termination.' Story's Com. on Const., § 864. The learned author adds, that while it has sometimes been a matter of regret that the disqualification has not been made co-extensive with the supposed mischief, and thus have forever excluded members from the possession of offices created or rendered more lucrative by themselves, yet that perhaps there is quite as much wisdom in leaving the provision where it now is. These remarks are quite applicable to the clause of our state constitution above cited; since an examination of it will clearly show that the disqualification thereby created is not permanent, but only temporary, continuing for the time the person is a member of the legislature. . . . When a new office is created, or the emoluments of an old one increased, while a person is a member of the legislature, such person cannot, during the time for which he was elected, be appointed or elected to the office he has had an agency in creating or rendering more profitable."
Since the emoluments of the judicial office were increased by the legislature of which Senator McAulay was a member, and since the term of his office as a member of such legislature has not expired, he is ineligible to the office of judge of the supreme court. I think, therefore, the writ should be granted.
MAIN, J., concurs with BLAKE, J.