Oceanographic Commission v. O'Brien

Hamilton, J.

This is an original mandamus proceeding. Plaintiffs seek to compel defendants, the State Treasurer and the Budget Director, to honor certain vouchers, and to execute, issue and honor warrants thereon in payment of expenses incurred by six members of the Oceanographic Commission of Washington. The defendants’ refusal to make these payments is based upon the fact that these six members of the commission were also members of the fortieth (1967) state legislature which created the commission *906through enactment of Laws of 1967, ch. 243. Because of this fact, defendants contend the respective legislative-members of the commission are constitutionally ineligible to serve upon the commission during the remainder of their present terms of office. Defendants predicate this contention upon the language of article 2, section 13 of the state constitution, which 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 which shall have been increased, during the term for which he was elected.

The question thus presented is whether membership on the Oceanographic Commission constitutes a holding of “civil office.”

Generally speaking, the basic considerations, and a starting point, in determining the character of a public office, e.g., whether it is a “civil office,” are the purposes of its creation and the nature of its duties and functions. State ex rel. Brown v. Blew, 20 Wn.2d 47, 145 P.2d 554 (1944); State ex rel. Johnston v. Melton, 192 Wash. 379, 73 P.2d 1334 (1937); 67 C.J.S. Officers § 2 (a) at 99.

With this in mind we turn to the pertinent legislation.

Laws of 1967, ch. 243, § 1, declares that this state’s unsullied seacoast and Puget Sound area

presents a natural base for expanding efforts to uncover and utilize the potentially rich food, oil and mineral natural resources of the western Pacific Ocean continental shelf, to locate and harvest abundant fish and marine life, to develop fish farms and aquatic agriculture through the utilization of the estuaries and bays of Puget Sound, to conduct studies of marine and aquatic life, to research and' develop seafood uses and seafood processing plants, to locate a temperate zone marine laboratory, to collect and distribute living marine organisms for marine and biological research, and to conduct research into weather forecasting and modification.

The legislation then points out that a permanent organization is essential to fully exploit the strategic position of *907the state as a base for the listed activities, with appropriate regard for

the ancillary needs of providing planned waterfront development, public recreation, conservation, and prevention of water pollution ....

Against the backdrop of these asserted objectives, section 2 proceeds to create the Oceanographic Commission. It provides, among other things, that the commission will be composed of 12 members, three of whom are to be appointed from the state Senate by the President of the Senate, and three of whom are to be appointed from the House of Representatives by the Speaker of the House. It further provides that members of the commission are to serve without compensation, although reimbursement for necessary travel and other expenses incurred in the performance of their duties is authorized.

Section 4 of the act enumerates the powers, duties and functions of the commission as follows:

(1) Encourage, assist, develop and maintain a coordinated program in oceanography for the benefit of the citizens of the state and the nation;
(2) Encourage private industrial enterprise to utilize the Puget Sound area as a base for oceanographic work;
(3) Promote national interest in Puget Sound as a base for national oceanographic programs;
(4) Assist in developing educational programs to provide the professional and technical graduates required by oceanographic expansion in the area;
(5) Undertake projects designed to inform the citizenry of the importance of oceanography to the development of the area;
(6) Assist in the study of problems of waterfront development, pollution, and parks and recreation areas for public use;
(7) Accept funds, gifts, bequests, and devises from any lawful source given or made available for the purposes of this act, including but not limited to grants of funds made with or without a matching requirement by the federal government;
*908(8) Encourage, supplement and assist the development of programs under the National Sea Grant College and Program Act of 1966 by the University of Washington and other participating educational institutions of the state and region. The programs and mission of the commission and its institute are not to be in duplication of the existing program of the University of Washington or other educational institutions of the state in oceanographic research, training or public service, or of the program developed under the National Sea Grant College and Program Act of 1966.
(9) Make annual reports to the Washington State Legislature, or to the appropriate interim committee thereof, all activities undertaken in connection with the power, duties and functions assigned in this section together with any recommendations for new legislation designed to accomplish the purposes of this act.
(10) Delegate in its discretion and to the extent permitted by the state Constitution, any of the powers and duties set forth in subsections (1) through (8) to the Oceanographic Institute of Washington formed pursuant to section 5 of this act.

By section 5 of the act, the commission, in the furtherance of its duties and functions, is authorized to form a nonprofit corporation under the provisions of and with the powers provided by ECW 24.04,1 with members of the commission being members and trustees of the corporation together with such additional trustees, not exceeding 20 in all, as a majority of the commission members shall accept. *909This corporation, pursuant to this section of the law, shall be designated as the Oceanographic Institute of Washington and is empowered to coordinate, promote and carry out such policies for oceanographic programs and development as may be advised, consented to and formulated by the commission. Furthermore, the corporation is authorized to accept, use and expend such public funds as are lawfully made available to it, and to exercise such other powers and duties as the commission may legally delegate to it.

Following enactment of Laws of 1967, ch. 243, the legislature by Laws of 1967, Ex. Ses., ch. 143, § 1, appropriated the sum of $150,000 to finance the operations of the commission for the 1967-1969 biennium.

With these legislatively stated purposes, objectives and avenues of performance before us, we look now to a determination of the question of whether a position of membership on the Oceanographic Commission constitutes a “civil office,” within the contemplation of article 2, section 13, of the state constitution. In resolving this question, we proceed upon the basis of the test laid down in State ex rel. Barney v. Hawkins, 79 Mont. 506, 257 Pac. 411, 53 A.L.R. 583 (1927), and adopted by this court in State ex rel. McIntosh v. Hutchinson, 187 Wash. 61, 59 P.2d 1117, 105 A.L.R. 1234 (1936), and in State ex rel. Hamblen v. Yelle, 29 Wn.2d 68, 185 P.2d 723 (1947). The test, in pertinent part, is stated as follows, at 76:

“. . . five elements are indispensable in any position of public employment, in order to make it a public office of a civil nature: (1) It must be created by the Constitution or by the legislature or created by a municipality or other body through authority conferred by the legislature; (2) it must possess a delegation of a portion of the sovereign power of government, to be exercised for the benefit of the public; (3) the powers conferred and the duties to be discharged must be defined, directly or impliedly, by the legislature or through legislative authority; (4) the duties must be performed independently and without control of a superior power, other than the law, unless they be those of an inferior or subordinate office, created or authorized by the legislature and *910by it placed under the general control of a superior officer or body; (5) it must have some permanency and continuity and not be only temporary or occasional.”

If any of these five elements be absent from a position of public employment, such employment is not a public office of a civil nature. State ex rel. Hamblen v. Yelle, supra. In the instant case, the parties chiefly contest whether the membership of the Oceanographic Commission possesses any delegation of the sovereign power of government (element No. 2). We are in accord with the tacit acknowledgment of the parties that the other four elements are present.

Sovereign power is broadly defined as the power to govern, or as that power in a state to which none other is superior or equal, and which includes all the specific powers necessary to accomplish the legitimate ends and purposes of government. Black’s Law Dictionary, 4th ed. (1957). More refined definitions speak of the sovereign power of a government as manifesting itself in but three ways, i.e., by the power of taxation, by the power of eminent domain, and by way of the police power of the government. United States v. Douglas-Willan Sartoris Co., 3 Wyo. 287, 22 Pac. 92 (1889). Other definitions relate the sovereign power of government to a person who is specifically invested by statute or law with independent functions and duties related to and designed to carry out the inherent police powers of the particular government involved, or who is vested with independent power in disposing of public property or incurring financial obligations on the part of the government, or who is appropriately empowered by the government to independently act in situations involving the various business or political dealings between individuals and the public, wherein the latter must act through the organ of government. State ex rel. Landis v. Board of Comm’rs of Butler Cy., 95 Ohio St. 157, 115 N.E. 919 (1917); State ex rel. Pickett v. Truman, 333 Mo. 1018, 64 S.W.2d 105 (1933); State ex rel. Webb v. Pigg, 363 Mo. 133, 249 S.W.2d 435 (1952).

*911However broadly or particularly the term sovereign power may be defined, it is certain that, among other attributes, it embraces an exercise of the government’s inherent police power, which, in turn, and by ordinary definition, extends to the preservation of the public health, safety, and morals, as well as to the regulation, preservation, promotion and development of natural resources. Clark v. Dwyer, 56 Wn.2d 425, 353 P.2d 941 (1960); State v. Dexter, 32 Wn.2d 551, 202 P.2d 906, 13 A.L.R.2d 1081 (1949).

Against this backdrop, plaintiffs'strenuously argue that their statutory duties and functions are delimited, and do not extend to or permit them to exercise any portion of the state’s sovereignty. In support of this contention, plaintiffs point to certain public offices or agencies which have been held to be devoid of sovereign power.

It is true, as plaintiffs assert, that certain public positions do not embody any portion of a state’s sovereignty. In one such category are legislative advisory committees, the duties and functions of which are simply that of collecting data, exchanging information and formulating proposals to be placed before the legislature. Thus, in State ex rel. Hamblen v. Yelle, supra, we held that a legislative interim committee exercised no sovereign powers in studying and reporting on the efficiency of state government. Likewise, in State ex rel. Herbert v. Ferguson, 142 Ohio St. 496, 52 N.E.2d 980 (1944), a “post-war commission,” established to gather data relative to post-war problems and to evaluate and make recommendations, was held to exercise no sovereign powers, provided, however, it did not undertake to purchase or lease any lands in the name of the state. Cf. State ex rel. James v. Aronson, 132 Mont. 120, 314 P.2d 849 (1957), and Jewett v. Williams, 84 Idaho 93, 369 P.2d 590 (1962).

Another category of public positions which embody no portion of a state’s sovereignty is that of “employments.” In State ex rel. Brown v. Blew, 20 Wn.2d 47, 145 P.2d 554 (1944), this court held that a court reporter for the superior court was an “employee” rather than a “public officer,” in part because the functions of the position did not include *912the exercise of sovereign power. In People ex rel. Board of Trustees of Univ. of Illinois v. Barrett, 382 Ill. 321, 46 N.E.2d 951 (1943), the University of Illinois was found to be an agent of the state for the purpose of operating an educational institution, but it functioned as an independent corporate entity, and therefore exercised no sovereign power. In Opinion of the Justices, 3 Me. 481 (1822), an agent for the superintendence and preservation of public timber land was designated as an employee, not significantly different in status from that of a contractor engaged to construct a state building, and as such was not invested with any sovereign authority. And, in United States ex rel. Noyes v. Hatch, 1 Pin. 182 (Wis. 1842), the functioning of a board of commissioners appointed by the Governor to operate a canal company on behalf of the public was characterized as an employment rather than as a public office because of the lack of sovereign power.

In our view neither of the foregoing categories of public positions which embrace no portion of the sovereignty is applicable to a position of membership on the Washington Oceanographic Commission. The duties and functions of the commission, unlike those of a legislative advisory committee, are not limited to assembling data and formulating proposals. Neither is it directly responsible to nor does it act under the immediate supervision of any superior authority, contractual or otherwise, as would be the case in a position of employment. On the contrary, the commission is statutorily mandated to “exploit” the strategic position of this state as a base for oceanographic activities. It is given the power to “encourage,” “assist,” “develop,” and “maintain” oceanographic programs, to “promote” national interest in Puget Sound, to “undertake” educational projects, to “accept” funds and other grants, to interact- with other agencies in the furtherance of public recreational or conservation programs and the control of water pollution,-and to form and fund a nonprofit corporation to facilitate the exercise of its powers and the accomplishment of its objectives. Public funds are appropriated to and are to be expended by . the commission in the fur*913therance of its aims. Independent initiative and the exercise of discretion in selecting a course or courses of action designed to carry out its purposes within the framework of the statute are lodged in the commission. In short, it is designed as an arm of the state to promote, develop, maintain, and preserve a most valuable natural resource for the benefit of the citizens of this state and the public at large. Under these circumstances, we are satisfied the commission is clothed with and exercises a portion of the state’s police power in performing its functions.

Plaintiffs contend, however, that commission membership should be characterized as “positions of trust” rather than “civil offices,” thus avoiding the impact of article 2, section 13, of the state constitution. They say this should be so upon the theory that the commission is designed to function primarily in a proprietary capacity, with its objectives being pursued by nongovernmental means, and without the benefit of such traditional sovereign attributes as the rule making or regulatory power, the quasi-judicial hearing power, or the powers of eminent domain or taxation.

Again, we are unable to agree with plaintiffs.

In determining whether the methods by which a public position, vested with any portion of sovereign power, is authorized to exercise that power, or whether the absence of a particular means by which it could exercise the power, is vital to that position’s status as a “civil office,” we look to the constitutional context in which the term “civil office” arises.

Const, art 2, § 13, with which we are concerned, 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 which shall have been increased, during the term for which he was elected. (Italics ours.)

In reference to this constitutional provision, we quoted from Story on the Constitution § 867 (1891) in State ex rel. O’Connell v. Dubuque, 68 Wn.2d 553, 413 P.2d 972 (1966), at 567, as follows:

*914The 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.

And, in State ex rel. French v. Clausen, 107 Wash. 667, 182 Pac. 610 (1919), we adopted the language of the Michigan Supreme Court in Fyfe v. Kent Cy. Clerk, 149 Mich. 349, 112 N.W. 725 (1907), wherein that court stated relative to a like constitutional provision, at 673:

“The purpose of these provisions is ‘to preserve a pure public policy,’ or, as we said in Ellis v. Lennon, 86 Mich. 468, speaking through Justice McGrath, ‘to prevent officers from using their official position in the creation of offices for themselves or for the appointment of themselves to place.’ ”

Without doubt, a strong public policy exists in favor of eligibility for public office, and the constitution, where the language and context allows, should be construed so as to preserve this eligibility. State ex rel. O’Connell v. Dubuque, supra. It does not follow, however, that, in the furtherance of this policy, we are permitted to give words or phrases an unnatural or uncommon construction or application, and thereby run in opposition to the public policy giving rise to the pertinent constitutional provision. We cannot, in good conscience, derive from the words of article 2, section 13, or from the purpose for its existence, any indication of intent or reason to distinguish between its application to offices, vested with a portion of sovereign power, solely upon the basis of the particular methods which are, or are not, statutorily provided to carry out the exercise of its sovereign power. This being our view, we are restrained from characterizing membership on the commission as “positions of trust,” rather than “civil offices” within the contemplation of article 2, section 13.

The fact that there is no salary or pecuniary emolument affixed to membership on the commission does not make it any less a civil office. Advisory Opinion to Gover*915nor, 49 Fla. 269, 39 So. 63 (1905); 42 Am. Jur. Public Officers § 61. Neither does the absence of pecuniary attraction immunize the office from the constitutional limitation of article 2, section 13. As we have observed, this constitutional limitation was intended to avoid any improper bias, or the temptation thereof, on the part of legislators, which might arise from opportunities to create offices offering aggrandizement, personal, pecuniary or otherwise, to which they might be elected or appointed during the term for which they were elected.

Accordingly, we are constrained to hold that the members of the Oceanographic Commission have been appointed to civil offices of this state, and, as a result, those six plaintiffs who, in addition to being members of this commission, were members of the 1967 state legislature which created the commission, are presently rendered ineligible to hold these civil offices by the terms of article 2, section 13, of the state constitution.

Our disposition of this matter makes it unnecessary for us to consider the further issue presented by the parties relating to the board of trustees of the Oceanographic Institute, the nonprofit corporation contemplated by Laws of 1967, ch. 243. Likewise, we do not deem it appropriate for us to undertake the rendition of an advisory opinion dealing with the question of how vacancies on the commission, arising from the present ineligibility of the plaintiffs, may be filled.

Finally, we conclude with the observation that we have not considered nor have we passed upon any question bearing upon the validity of Laws of 1967, ch. 243. Our review has been specifically limited to the question of the eligibility of plaintiffs to serve as members of the commission during their current terms of legislative office.

The petition for writ of mandamus is denied.

Hill, Weaver, Rosellini, Hunter, Hale, and McGovern, JJ., and Ward, J. Pro Tem., concur.

RCW 24.04.080 lists the powers of a nonprofit corporation formed pursuant to RCW 24.04, in part, as follows:

[may] sue and be sued in any court, may make and use a common seal and alter the same at pleasure, may receive gifts and devises, may purchase, hold and convey real and personal property, as the purposes of the corporation may require, may appoint such subordinate agents or officers as the business may require, may demand assessments of members and sell or forfeit their interests in the corporation for default with respect to any lawful provision of the bylaws, may enter into any lawful contracts and incur obligations essential to the transaction of its affairs for the purpose for which it was formed, may borrow money and issue notes, bills or evidence of indebtedness, and may mortgage its property to secure the same as its bylaws may provide, and, generally, may do all things necessary or proper to carry out the purpose of its creation.