Untitled Texas Attorney General Opinion

OFFICE OF THE ATTORNEY GENERAL OF TEXAS AUSTIN Eonorable Robert D. Smither County Attorney Walker county Buntsville, Texas Dear Dr. Ssdther: opinion HO. 0 of your request for an opinion from h respect to the above-captionedsub nature of the Rlembershipint ard to see whether or not its ooc tible with our consti- tutional limit o dual offloe-holding. e President, by Ezecutive lonal War Labor Board, with ttle labor disputes uhich ontributesto the effective giving it not only broad but final ident's Executive Order No. 9260, of the powers, functions and duties ard by Eremtlve Order No. 9917, were confirmed and made applicable sto cover all industries aud all employees.* On January 21, 1943, the Tational War Labor Doard released its order establishiugc ‘Twelve Regional Tar Labor Boards, with full authority to make final deaisions in labor disputes and iwolunta?y wage and sal- ary adjustment oases are being establishedby the Rational War Labor Board under a sreep- HOriOrableRobert R. Wither - page 2 ing decentralieationprogram announced today by the Board. sRach of the Regional Boards will be set up on the same tripartite system of pub- lic, employer and labor representativesas the IiationalBoard. In addition the program calls for establishmentof permauent tripar- tite panels in all the maJoc cities of the United States to handle dispute oases, and to make recomeudations to the Regional Boards. l * 0 *The National War Labor Board in Uaah- ington, under the neu proeedure,will funo- tion as a supreme court for labor,disputee, reserving the right to revieu Regional Board deoisions on its motion or by grant- ing a petition to appeal filed by one of the parties to a ease. l l e 'Any party will hare the right, within ten days after the issuance of a dixeotire order by a Regional Board, to petition to the Rational Board for a revieu of the o8se.s Further, we are advised that each member of the Regional Board is required to take an oath of office and to serve a ~~~xlmum time of four days monthly with resnmer- ation of $18.00 per day and expeuses. Section 40, of Article 5X1, of the Constitution, deolarest slioperson shall hold or exercise,at the same time, more than one ciril office of emoluments,(except certain enumerated offioes aud positions). tiembership in such a board is not named in the exceptions. Se&ion 33 of the same Article declares: 'The accounting officers of this State shall neither draw nor pay a warrant upon the treasury in favor of any person, for salary or oompeusationas agent, officer Honorable Robert D. Slither - page S or appointee,who holds at the same time any other office or position of honor, trust or profit, under this State or the United States, except as prescribed in this Constitution.* The exceptionsdo not include the office or position of the membership involved. Ve beg to advise that in our opinion membership in the Regional war Labor Doard does come within the pro- hibitions of the Constitutionin both sections above quoted. The general oharactoristicsof an office are, (a) that its incumbent exercises some portion of the sovereign pmer of the State; (42 Am. Jur. p. 832, Sec. 4); (b) that ;sf3emb&aeesthe idea of tenure and duration; (c) (ibid, p. o. G)l and (d) that it embraces the further idea of fee: or compensation;(ibid. p. 884, SAC, 6). The position of member of the Regional War Labor Board has all the indicia of an office as contra-distinguish- ed from an employmentor other position whatsoever. While no one, or even more of the above indicia are conclusivein all cases, neverthelesseach is persuasive. On June 2, 1242, the Attorney General of Louisiana held that service as a member of the Parish (county)Ration- ing Board (withoutcompensation)where the member was requir- ed to take an oath of office, is an office within the meaning of the constitutionof that state forbiddingdual offioe- holding. In the recent cases of Carpenter v. Sheppard, 1.46 9. #. (2) 662, Spears 0. Sheppard, 160 S. PI.(2) 769, and Cramer v. Sheppard, 167 6. W. (2) 147, by our SUprem Court, the dual office-holdingsinvolved were held to be within specific exceptionsaf the Constitution,and thereforenot forbidden, thus emphasizingthe necessity for such constitu- tional exceptionsto take such Federal offices out of the prohibitionof our Constitution. That membership in the 12egionalWar Labor Board, if not an office, is neverthelessa position of honor, trust and profit Uryzerthe United States, within the meaning of Section 33, of Article XVI, of the Constitutionabove quoted, Sonorable Hobert D. Smither - Page 4 is, we think, beyond oontroversy. This departmenthas made many rulings uPon very similar, though not identical situations,as follows: The Lieutenant Governor may not hold the position of Professor of Journalism in the State University,and at the same time receive from the treasury compensationfor his official.servioes. (OpinionsAttorney General x912-1914,P. 873). Other opinions deal with the question of scope of Section 33, Article XVI, involving the followingdual services* Head of Department of Genetics of the A. & U. Dal- lege and State Seed and Plant Board membership. (OpinionHo. 04662). A State officer and Civilian Defense membership. (OpinionNo. 04642). State Representativeand employmentwith Federal governmentas a printer under Civil Servioe. (OpinionNo. 0-364 2) l Employee as medical oonaultantin the Crippled Ohfldren*sDivision of the Department of Education,and Director of the tlaternaland Child Bealth Division of the State Department of Dealth. (Opinion No. o-s)aa). State or county offioer and Supervisorin Soil Con- veraationDistrict. (Opinion NO. O-3396). Texas State Board of Yedioal Examiners and special State aanger. (OpinionNo. O-3946). Jlmployeeof a State eleemosynaryinstitutionand of State Department of Public Welfare. (OpinionHo. o-3961). Member State Board of Medical E!xaud.ners and a special State Uanger. (Opinion No. o-3046). &ember Board of Directors of the Texas College of Arts and Industriesand County Superintendentof Public.In- struction. (OpinionNo. 0-2SQl). iionorablenobert D, sstither- page 5. Old Age Assistance investigator and employee State Dcpartnent of Public Welfare. (Opinion No. o-2701). Inspector for the Texas Liquor Control Board and trustee of an indeperbientsohool tistrict. (Opinion NO. O-2628). l&suber County Board of Soho Trustees and member of local oornrmnitycomrldtteeAgrioultursl Aaadjustnlent Aaudnis- tration. (Opinion NO. O-2226). Trusting that what we hare said fully ansuers your inquiry, we are Very truly yours