Oceanographic Commission v. O'Brien, 39914

• Decision Date: 21 November 1968
• Docket Number: No. 39914,39914
• Citation: 447 P.2d 707,74 Wn.2d 904
• Court: Washington Supreme Court
• Parties: OCEANOGRAPHIC COMMISSION of Washington, and State Senator August P. Madesich, State Senator John N. Ryder, State Senator Wesley C. Uhlman, State Representative Donald Eldridge, State Representative Slade Gorton, and State Representative Richard Kink, as the Legislative Members of the Oceanographic Commission of Washington, Plaintiffs, v. Robert S. O'BRIEN, as Treasurer of the State of Washington, and Walter C. Howe, Jr., Budget Director of the Central Budget Agency of the State of Washington, Defendants.

Page 904

74 Wn.2d 904

447 P.2d 707

OCEANOGRAPHIC COMMISSION of Washington, and State Senator August P. Madesich, State Senator John N. Ryder, State Senator Wesley C. Uhlman, State Representative Donald Eldridge, State Representative Slade Gorton, and State Representative Richard Kink, as the Legislative Members of the Oceanographic Commission of Washington, Plaintiffs, v. Robert S. O'BRIEN, as Treasurer of the State of Washington and Walter C. Howe, Jr., Budget Director of the Central Budget Agency of the State of Washington, Defendants.

No. 39914.

Supreme Court of Washington, En Banc.

Nov. 21, 1968.

John J. O'Connell Atty. Gen., Charles E. Siljeg, Sp. Asst. Atty. Gen., Olympia, for plaintiffs.

John J. O'Connell, Atty. Gen., Philip H. Austin, Kenneth R. Ahlf, Asst. Attys. Gen., Olympia, for defendants.

HAMILTON, Judge.

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 through 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 Wash.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 modifications.

The legislation then points out that a permanent organization is essential to fully exploit the strategic position of the 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 (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 RCW 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. This 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.Sess., 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 P. 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 Wash.2d 68, at 76, 185 P.2d 723 at 728 (1947). The test, in pertinent part, is stated as follows:

'* * * 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 by 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 acknowledgement of the parties that the other 4 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...