This is an appeal from a judgment dismissing the complaint of the plaintiff in which he sought to remove the name of defendant, Moroni L. Jensen, from the September 9, 1980, Primary Election ballot as a candidate for the Democratic nomination for the office of Lt. Governor/Secretary of State.
The defendant, Jensen,1 was a member of the Utah Senate. His term of office commenced January 1, 1977, and ended December 31, 1980. In April 1980, Senator Jensen announced his intention to run for the office of Lt. Governor/Secretary of State and thereafter duly filed for that office. The plaintiff, Lynn A. Jenkins, was a Republican candidate for the Utah Senate in District 8 of Salt Lake County. Jenkins filed this action for a declaratory judgment that Senator Jensen was ineligible to hold the office of Lt. Governor/Secretary of State *Page 859 because his election to that office would violate Article VI, Section 7 of the Utah Constitution and he sought to have Senator Jensen's name removed from the Primary Election ballot.
Article VI, Section 7 provides:
"No member of the Legislature, during the term for which he was elected, shall be appointed or elected to any civil office of profit under this State, which shall have been created, or the emoluments of which shall have been increased, during the term for which he was elected."
Plaintiff first challenges Senator Jensen's eligibility to run on the ground that during his present term of office the legislature has twice increased the salary of the Lt. Governor/Secretary of State. The first increase was enacted in 1977 and raised the salary from $22,500 to $26,000 annually. The second increase was enacted in February 1980 and raised the salary from $26,500 to $33,500 annually upon its effective date, January 1, 1981. The district court found that the current rate of inflation in this country was between 13 to 14 percent annually and that the increase was made in an attempt to meet such inflation. The court further found that the salaries of elected state officials in this State have lagged behind both the salaries provided to other state employees and the increases in price indices from which inflation rates are derived. Exhibits were introduced to support those findings showing that the two increases, although amounting to 52 percent of the 1977 salary, did little more than keep the salary abreast of inflation. The court concluded that the decision of this Court in 1964 in the case of Shields v. Toronto, 16 Utah 2d 61, 395 P.2d 829, was dispositive.
We agree with the conclusions of the district court. We pointed out in Shields v. Toronto2 that the purpose of Section 7, Article VI was to prevent a legislator from conniving or participating in an ulterior scheme whereby a new office would be created by the legislature or the emoluments of an existing office increased, and then the legislator would be appointed or elected to such office and improperly enrich himself at the expense of the public treasury. We held, however, that when the increase does not enrich the office holder but merely keeps him approximately even with inflation, the mischief the provision was meant to prevent would not occur. We stated:
"The important fact here is that the salary increases involved could not by any stretch of the imagination be regarded as partaking of the impropriety just referred to. . . . These relatively small increases . . . should properly be regarded as just what they were, a moderate cost of living adjustment on an across-the-board basis in keeping with the steadily rising costs of living. Accordingly, it can be said with assurance that this is not a situation which would lend itself to any ulterior scheme by a legislator to set up a high paying sinecure to take advantage of which Section 7 of Article VI was designed to prevent. . . ."
We hold that Shields v. Toronto is controlling here. While the increases in the salary in the instant case are much greater than in Shields v. Toronto, the current inflation rate is much greater than it was when that case was decided in 1965. The increases voted by the legislature during the past four years for the Lt. Governor/Secretary of State were given at the same time and in the approximate same percentages as increases for other members of the executive department, namely, Governor, Attorney General, Auditor and Treasurer. The office of Lt. Governor/Secretary of State was not singled out for any special treatment over and beyond that conferred upon other members of the executive department. The increases in both instances were less than increases recommended to the legislature by the Executive Compensation Commission, a citizen commission which studies and recommends to the legislature increases in salaries for members of the executive and judicial departments of this State. There is no hint or suggestion here that either Senator Jensen, or any *Page 860 other member of the legislature, during the past four years, has been a party to an ulterior scheme or connivance to single out this office for any special treatment with the objective in mind that Senator Jensen would seek the office in this year's election. We adhere to the reasoning employed by this Court in Shields v. Toronto and reaffirm the law as set forth therein.
Secondly, the plaintiff attacks Senator Jensen's eligibility because the legislature in 1979 adopted Senate Joint Resolution No. 7 which proposes to amend Article VII of the Utah Constitution to change the name of the office of Secretary of State to Lt. Governor. This proposal will appear on the ballot in the November 1980 General Election for the approval or disapproval of the voters of this State. Plaintiff argues that by adopting Senate Joint Resolution No. 7 the legislature, of which Senator Jensen was a member, created an office and that under Article VI, Section 7, Senator Jensen cannot be elected to that office.
We find that this contention of the plaintiff is also without merit. We believe that the prohibition in Section 7, Article VI was aimed at the statutory creation of an office. Here the legislature has simply, by resolution, placed before the voters the decision of whether the office of Secretary of State shall be changed in the Constitution to be the office of Lt. Governor. If any office is "created" the creation will come about by the vote of the people and not by the vote of the legislature. A legislative act placing before the voters the decision of whether a new administrative or executive office will be formed does not constitute "creation" of an office. State v. Gooding, 22 Idaho 128,124 P. 791.
The judgment below is affirmed. Costs to respondent.
J. ROBERT BULLOCK and RONALD O. HYDE, District Judges, concur.
CROCKETT and WILKINS, JJ., having disqualified themselves, do not participate herein, BULLOCK and HYDE, District Judges, sat.